Employee with Suppression Order Gets Final Warning

A recent case that has gone through the Employment Relations Authority, the Employment Court, the Court of Appeal and the Supreme Court has confirmed an employer may have the right to know the details of charges or offences against its employee regardless of any non-publication or suppression orders that may be in place.

ASG was an employee of the Vice-Chancellor of the University of Otago, working in a security position that required him to interact with students and staff, and potentially members of the public, in challenging situations. ASG pleaded guilty in the District Court to two charges; that, being a male, he assaulted a female; and a wilful damage charge. The Judge discharged him without conviction on both charges and made a non-publication order in respect of his name and the offending.

The Deputy Proctor of the University was tipped off about the charges and was present in the District Court and took notes of the Judge’s findings. The University determined it could be said to be legitimately interested in the fact an employee had pleaded guilty to a serious charge relating to precisely the type of behaviour he is employed to prevent; and that they would be free to discuss the employee’s conviction with appropriate HR or management personnel, on a confidential basis.

Additionally, ASG’s employment agreement contained health and safety provisions which required the University to encourage safe work practices. These included the requirement that all employees would maintain proper standards of integrity, conduct and concern with regard to the wellbeing of students attending the institution. ASG’s job description emphasised these responsibilities in its statements of objectives and key tasks.

It was decided an investigation should be commenced and ASG was suspended for its duration. ASG said that the University had breached the non-publication order and therefore advised that he would not meet the University representatives to discuss the concerns.

After an investigation that took four months, the University ended the suspension and ASG was given a final written warning.

ASG raised two personal grievances against the University. One; that the suspension constituted an unjustified disadvantage and; that the final written warning was a further disadvantage in his employment. He claimed the details of his offending were suppressed and his employer could not, therefore rely on those.

The issue of whether the University had breached the suppression order was originally heard in the Employment Court, before it was challenged in the Court of Appeal. Both Courts found in favour of the University. The Court of Appeal commented that the University had a “genuine interest” in the information and that ASG had breached his duty of good faith by not disclosing the charges. ASG appealed this decision to the Supreme Court.

The Supreme Court confirmed that the suppression order applied to communications made verbally, including by “word of mouth”, as well as those in writing. However, the Supreme Court held that the order did not prohibit the dissemination of the information to persons with a “genuine need to know”, or “a genuine interest in knowing”, and that the genuine need or interest is to be assessed objectively.

The Supreme Court went on to say that given ASG’s role, including to protect students on campus, the University had a genuine interest in knowing he had pled guilty to an offence of violence against his spouse. Therefore, the outcome was that there was no breach of the suppression order.

This case confirms an employer may have the right to know details of charges or offences regardless of any suppression orders that are in place. Further, that the duty of good faith extends to requiring an employee to disclose charges against them to their employer. Importantly, there must be a link between the charges and the employee’s employment.

This is an area that needs to be considered on a case-by-case basis. Therefore, if you have any questions about this type of situation, please contact us.