How criminal charges impact employment investigations

Worker given interim order against workplace investigation during criminal trial

How criminal charges impact employment investigations

Former Te Whatu Ora – Health New Zealand (TWO) employee Mr Y has unsuccessfully sought an interim order restraining TWO from continuing with an employment investigation and/or finalising a decision regarding potential disciplinary action against him.

In late 2023, Mr Y was charged with dishonestly taking vaccination data from TWO, which has since been leaked on the internet. So far, at least 12,000 people have had personal information released as part of the 2023 leak.

As a result, Mr Y had been suspended from his employment by TWO pending an employment investigation and charged under s. 249(1) of the Crimes Act 1961 with accessing a computer system for dishonest purpose.

In the Employment Relations Authority (Authority), Mr Y argued that a continued disciplinary investigation would affect his right to a fair criminal trial, as anything he said may be used in the active criminal proceedings.

TWO disputed that there was an arguable case that, in the absence of injunctive relief, it would require Mr Y to “disclose information during a disciplinary meeting that could incriminate or otherwise prejudice [him] in his defence against a criminal charge.”

Right to fair trial

A disciplinary enquiry should be placed on hold when questions that might be posed impinge upon an employee’s rights to a fair criminal trial. However, for the Authority to interfere with an employer’s entitlement to investigate and discipline an employee, the burden is on the employee to show that the employer’s ability to do so, should be interfered with: see Wackrow v. Fonterra Co-operative Group Limited,[2004] 1 ERNZ 350.

The Authority or court must consider numerous factors, including; possible publicity of the civil proceedings that might reach and influence jurors; the proximity of the criminal proceedings; the burden of preparing for two proceedings; and the effect on the employer when weighed against the effect on the defendant/employee.

The Authority considered Mr Y had an arguable case that the questions TWO wanted to ask him in its investigation, risked straying into areas where his right to a fair trial, and potentially to not self-incriminate, may become engaged.

However, the Authority was also satisfied that overall justice favoured declining the request to make an interim injunction. The Authority considered that the balance of convenience favoured TWO being entitled to ask Mr Y questions, so long as it did not ask questions which were directly the subject of the criminal charge or draw unreasonable adverse conclusions from Mr Y exercising his right to silence.

Investigation overlaps with criminal trial

This decision serves as an important reminder to employers, that where an employee’s actions in the workplace have the potential to become a criminal matter, the fundamental rights of the employee may well become a live issue for the employer to grapple with.

In instances where disciplinary proceedings risk overlapping with criminal matters, employers should seek legal advice to ensure that neither the disciplinary investigation nor the criminal proceedings for the employee become compromised.  Note that the employee may rely on their right to silence throughout the employment investigation.

It is important that, where possible, employers frame any allegations of serious misconduct so that they do not impinge on a possible criminal charge. This will require an employer carefully considering the actions of the employee and determining how to allege serious misconduct in line with the provisions of the employment agreement or workplace policies.

Given the delays of a criminal trial and the potential for an employee to be suspended on pay throughout this period, it is important for an employer to quickly proceed with the employment investigation and disciplinary process in an appropriate manner.

Andrew Shaw is the managing partner and head of the Employment Law Team at Lane Neave in Christchurch.

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