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Bell & Co is a dispute resolution firm, and is founded on the values of being progressive, results-driven, and having great relationships with clients, and this month they look at the importance of trust between employers and employees, which they maintain is essential to a working relationship.
Employers rely on their employees to carry out their roles to the utmost standard because the employees represent them. From an employment lawyer’sperspective, it is always better to admit a mistake than to mislead an employer.
It is evident that dishonesty in the workplace is serious misconduct and can be grounds for a dismissal. Lawyers for employees would look to the Employment Relations Act 2000 to find the test for justification of a dismissal that an employer must satisfy in order to dismiss an employee. Section 103A(2) reads:
‘The test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.’
In 2006 there was a case that involved an employee abusing the right to sick leave. The case details that the employer’s burden is to prove that they have carried out a ‘full and fair’ investigation into the conduct and found that it should be regarded as serious. It is not up to the employer to prove the conduct itself.
A full and fair investigation in this context included notifying the employee of the content of the meeting and that their employment was at risk. It also included the opportunity for the employee to rebut the arguments given by the employer. The investigation found that the employee lied about the extent of his sickness and misled his employers as a result.
Lying is capable of being serious misconduct, which is grounds for instant dismissal. A personal grievance claim can be placed under the Employment Relations Act 2000, but it is subject to the justification test in s 103A(2). If the employer can establish that they acted fairly and, in the circumstances, they concluded that the employee acted dishonestly to break their trust, dismissal may be justified. An employment lawyer would advise that the employee must be aware of the repercussions of acting dishonestly, and note that disclosing a mistake or something they are unsure about is acceptable and common-place. An employer is obliged to provide assistance and training.