The Court of Appeal case of George v Auckland Council  NZCA 209 looked specifically at the situation where an employee was untruthful in a disciplinary process.
Ms George held a senior position at the Council. Ms George recruited a casual employee and the Council believed that Ms George did not follow the Councils’ recruitment policy. The Council initiated a disciplinary process.
The Council became concerned about the truthfulness of the explanations that Ms George gave. The Council advised her that “If it becomes evident that your explanation has not been truthful then this may itself constitute serious misconduct.” The process was then expanded to include the alleged untruthfulness.
The Council decided that the allegations relating to the recruitment of the casual employee had been substantiated (and amounted to misconduct). The Council emphasised the importance of trust and confidence, particularly in the position that Ms George held and, as a result, did not accept her explanations. It also considered that her untruthfulness amounted to serious misconduct.
Ms George unsuccessfully argued that she had been unjustifiably dismissed and submitted that the Council could not expand its disciplinary process to include the alleged untruthfulness. The Employment Court (Court) disagreed and could “see no reason in principle why an employee who is untruthful to their employer during the course of a disciplinary process should be immune from disciplinary action.” The Court referred to an earlier Court of Appeal case in which it was stated that “a proved lie, told in denial or explanation of an allegation of misconduct, may not necessarily assist in the proof of the misconduct, but may be misconduct in itself.” The Court considered that commencing a separate disciplinary process in relation to the untruthfulness “would lead to unnecessary complexity, delay, and inefficiency.” It was noted that Ms George’s senior role “necessarily required that her employer could repose a high degree of trust and confidence in her” and, overall, the circumstances provided a sufficient basis for the Council’s finding of serious misconduct. The Court of Appeal agreed.
Points to remember
1. Where an employer finds an employee to be untruthful in disciplinary investigations, the employer may consider this as an additional disciplinary ground;
2. An employer does not need to commence a separate disciplinary process where allegations of untruthfulness arise, provided a fair process is followed;
3. An overall finding can be made taking into account all allegations before the employee;
4. It is still open to an employer to raise allegations of untruthfulness in a separate disciplinary process later, if this is discovered following the conclusion of the initial process (provided that a procedurally fair process is carried out); and
5. The more senior the employee, the higher the degree of trust and confidence and the more weight that will attach to untruthful behaviour.
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