by Nicole Johnston,solicitor
Let’s say you decide to walk out of the supermarket without paying for your snacks. Or maybe you attack someone on the street and steal their snazzy shoes (not speaking from experience I promise…). If you are charged with a criminal offence, are you required to tell your employer? If the offending is relevant to the nature of your job, then the answer is yes. Failure to inform your employer of any relevant criminal charges is a breach of good faith which can result in disciplinary action or even dismissal.
An employee, A, was a security guard on a university campus and a key part of his job involved protecting students at night. While in this employment, A pleaded guilty to willful damage and assaulting a female, both charges arising out of an incident with his wife. A was discharged without conviction, however the Judge made an order suppressing A’s name and all details relating to the offending.
A university official was told by someone else that A was being sentenced, and went along to court.
The official sought legal advice from the university’s lawyer about the impact of the name suppression order on A’s continued employment and what the employer could do with this information. The advice (which turned out to be right) was that the suppression order did not apply to “genuinely interested people on a one-to-one basis”, and the employer had a legitimate interest in the fact that A had pleaded guilty to a charge “involving the type of behaviour the employee is engaged to prevent.”
A number of managers at the university were told about A’s charges. The University considered that irrespective of what the Court had decided, an allegation that A had assaulted a female was relevant to his employment because his job involved protecting students.
A was suspended while an investigation took place and he was given a final written warning based on the conduct that gave rise to the criminal charges. A brought a personal grievance against the university for unjustified disadvantage; he claimed the suspension and final warning disadvantaged his employment.
So the case went to the Employment Relations Authority. The outcome was the university had breached the name suppression order and its actions were not those of a fair and reasonable employer. The Authority found that A was unjustifiably disadvantaged by the final warning but not the suspension.
In other words it found that the name suppression ordered by the Criminal Court meant that the employer could not take action arising out of the conviction.
Both parties appealed to the Employment Court. The Employment Court found in the employer’s favour that the university’s actions were all justified and there was no breach of the name suppression order. This was based on the fact that as an employer the university had a genuine interest in the circumstances relating to the charges. The Court held that disclosure did not constitute ‘publication’, as disclosure was to a small number of people who all had a genuine interest.
The employee appealed to the Court of Appeal – and lost.
Finally the Supreme Court, after considering the whole legislative history in depth, arrived at exactly the same decision as the Employment Court and Court of Appeal. The university was entitled to be informed about A’s criminal charges due to the nature of his employment, but only those directly concerned had the right to know.