Can you dismiss an employee for lying during a disciplinary investigation?
General / 25 October 2017
Can you dismiss an employee for lying during a disciplinary investigation?
The recent Court of Appeal decision, George v Auckland Council [2014] NZCA 209 confirmed that where an employee deliberately lies during a disciplinary investigation into misconduct, further allegations of untruthfulness can be raised as serious misconduct and taken into account to justify dismissal.
FACTS OF THE CASE
It was alleged that Ms George, who was employed in a senior position at the Auckland District Council, breached the employer’s recruitment policy when she recruited a casual employee without the requisite authorisation.
A disciplinary investigation was conducted into the apparent breach of the recruitment policy and Ms George gave explanations that conflicted with statements made by other staff. The employer became concerned about the truthfulness of Ms George’s explanations and so raised those concerns with her. She was then provided with a further opportunity to comment on both the alleged breach of the recruitment policy and the alleged untruthfulness.
The original allegation was proven but not at a level that would justify dismissal. However, the employer concluded that the allegations of untruthfulness were proven and given the serious breach of trust and confidence, that dismissal was the appropriate action.
THE DECISION
The Employment Court found that Ms George’s former employer had followed a fair process, the allegations were raised with Ms George in sufficient detail and she was given a reasonable opportunity to respond. The Court stated that provided a fair process is followed there is no need for the employer to commence a fresh disciplinary process. Ms George’s dismissal was held to be justified.
WHAT DOES THIS MEAN FOR YOU AS AN EMPLOYER?
An employer can not investigate one allegation of misconduct and then dismiss an employee on a different allegation if it has not been investigated.
Suspect an employee is lying during a disciplinary investigation? Make sure you follow a fair and full process by providing the employee with adequate details of the alleged untruth and an opportunity to respond. The Court has emphasised that mere differences in recollection and inconsistencies are not in themselves enough to support a finding that an employee has lied. There must be proof of a deliberate untruth on the employee’s part.
If you suspect an employee is lying during a disciplinary investigation process and you are not sure how to approach it – please contact a member of the team, we would be happy to help.
Disclaimer: We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your employment lawyer for any questions specific to your workplace.