Police recruit argues employer should have consulted before removing him
The Employment Relations Authority (ERA) recently dealt with a personal grievance claim involving a police recruit who was suspended just days before graduation. This decision was due to allegations of inappropriate conduct, and the worker claimed he was unjustifiably disadvantaged by procedural failures in the suspension and investigation process.
The worker argued that police management failed to consult him before suspending him from duty and provided unclear communication about the investigation process that would follow.
He claimed the suspension occurred without proper procedures despite the allegations not requiring immediate action, and that he was disadvantaged by confusion over whether employment and criminal investigations would run concurrently.
Suspension circumstances and statutory powers
The worker was employed as a police recruit on a fixed-term agreement commencing 28 June 2023, with graduation scheduled for 19 October 2023.
On 13 October 2023, just three days before graduation, he was called to a meeting and provided with a letter advising that he was subject to suspension for 30 days while further assessment was made regarding allegations of inappropriate conduct involving another recruit.
The allegations related to an incident on 10 October 2023 involving claims that the worker had forced another recruit against a wall in a locked embrace and inappropriately touched her.
Police relied on section 70 of the Policing Act 2008, which permits suspension of police employees with or without pay, subject to conditions of employment in any applicable employment agreement.
The suspension letter stated it would be inappropriate for the worker to perform duties due to health and safety risks and the possibility that the alleged conduct might prejudice public interest or damage the police's reputation.
After 30 days, the worker might be given a proposal for continued suspension, restricted duties, or return to work with no restrictions. At the meeting's conclusion, he was required to leave the Police College and was escorted to collect his belongings.
Investigation process and communication failures
Police advised the worker that there would be a "dual process" involving both criminal and employment investigations running simultaneously.
However, the employment investigation did not commence until 20 December 2023, after the criminal investigation concluded with no charges being laid.
This conflicted with earlier advice that the employment investigation would begin on 13 October 2023.
Police claimed there was an agreement with the worker's union representative that the criminal process should proceed first, but the ERA found no evidence of such an agreement.
The union representative testified he would have recorded any such agreement and informed the worker, stating his practice was meticulous in these processes.
The worker's counsel raised concerns on 9 November 2023 about the suspension, lack of process clarity, and alleged unjustifiable disadvantages.
Police responses did not meaningfully address the confusion about investigation timing, only pointing to the criminal investigation being expedited.
The ERA found that the communication created an impression that criminal and employment processes would run in parallel, leaving the worker with incorrect expectations about the process.
Restricted duties proposal and consultation issues
On 8 November 2023, police proposed restricting the worker's duties to a traffic camera operator role in Palmerston North.
The worker responded that this was unworkable due to unspecified hours, additional costs, and childcare considerations.
He suggested alternative duties he could perform and sought payment reflecting those alternatives.
Police maintained they considered the worker's feedback but confirmed the traffic camera operator role on 20 December 2023.
The worker was later moved to a disclosures role in February 2024, though police stated this was different from roles he had previously proposed and occurred after criminal charges were ruled out.
The ERA found that while police had considerable latitude to restrict duties, their approach did not reflect a real commitment to finding mutually acceptable solutions.
The worker was effectively left in the dark about what alternatives might be acceptable to police, with management considering undisclosed factors, including location and work with females, when evaluating his proposals.
ERA findings on suspension justification
The ERA found that while the Policing Act permits suspension, it must still be exercised consistently with employment agreement terms and good faith duties.
The Authority noted that immediate steps were not taken when police first became aware of the allegations, with the worker continuing to interact with the complainant for some time before suspension.
The ERA concluded that, given the steps taken and what was known, including that the worker had remained in the workplace without further alleged issues, police were required to put a suspension proposal to him before actually suspending him.
While this may not have changed the result, the worker was disadvantaged by being excluded from the workplace without that opportunity.
The Authority found the initial 30-day suspension period appeared entirely arbitrary, with no clear basis for why this timeframe was relevant.
The ERA noted that while police might reasonably conduct preliminary inquiries to assess risks, the suspension followed some assessment rather than occurring immediately to ensure safety, making consultation more appropriate.
Investigation timing and communication standards
The ERA found significant inconsistencies between what the worker was told would occur and what actually happened.
The Authority determined it was understandable that the worker was confused about the process and believed the employment investigation would commence in October 2023 as originally communicated.
Police argued the worker did not raise concerns about the investigation timing and was not disadvantaged by the sequence.
However, the ERA found the communication issues were not inconsiderable and that the worker was disadvantaged by steps being taken inconsistent with what he had been led to believe, leaving him uncertain about his employment for longer than anticipated.
The Authority concluded that while there was nothing inherently wrong with the general investigation approach, the communication failures were procedural and not minor, resulting in the worker being treated unfairly.
Police actions were not those of a fair and reasonable employer in terms of communicating investigation processes clearly.
Compensation and remedy determination
The ERA awarded $6,000 compensation for humiliation, loss of dignity and injury to feelings, finding the worker was adversely impacted by police actions regarding his successful claims.
The Authority noted the impact included significant uncertainty and stress relating to his role as a parent and income provider.
However, the ERA declined to award lost wages, finding the worker remained on his contractual pay rate throughout and had no contractual right to constable wages until sworn in.
The Authority determined the worker would have been unable to graduate and attest as a constable regardless of the unjustified actions, as the investigation into allegations would have occurred anyway.
The ERA found no basis for reducing remedies due to the worker's conduct, rejecting police arguments about delays in commencing restricted duties.
The worker was eventually attested as a constable on 12 April 2024 after the employment investigation concluded with allegations not upheld, allowing him to complete his training requirements.
