A good example of what we consider to be ‘pedantic scrutiny’ by the Employment Court is seen in the...
Some of the government changes to New Zealand’s employment and holidays legislation will provide employers with a degree of procedural guidance as to what is a fair and reasonable process for disciplinary and dismissal procedures. The minimum requirements will be set out, together with the development of a Code of Employment Practice to be instituted for such procedures. Small business employers will welcome the news that their procedures will not be subjected to pedantic scrutiny, however how this is defined in the legislation is yet to be seen.
A good example of what we consider to be ‘pedantic scrutiny’ by the Employment Court is seen in the recent case of Secretary for Justice v Dodd [2010] NZEMPC.
Ms Dodd was a trusted senior employee of the court, a court manager and registrar, who became personally involved in a police prosecution against her nephew who faced imprisonment. Ms Dodd intervened by telephoning the complainant to try to get her to change her victim impact statement so that her nephew would be presented in a more favourable light. Ms Dodd also used the court computer system to access details about her nephew’s prosecution which she then gave to her nephew’s lawyer.
In the view of the Employment Court, the Ministry erred in its disciplinary process by failing to consult with Ms Dodd prior to deciding to suspend her. The Ministry also neglected to take Ms Dodd’s offer of character referees into account, which included managers and judges who still maintained trust in her. The Court held that Ms Dodd’s assurances not to reoffend, her admission of guilt and her previously exemplary work record were not sufficiently taken into account by the Ministry. The Court believed that the investigating manager had limited personal knowledge of Ms Dodd and her personal circumstances and should have considered the views of others to be particularly significant in this case.
Even though the Court has noted that the above example was a rare one, the question remains, how serious does serious misconduct have to be before summary dismissal can be implemented?
