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Court rules on disclosure of Employee’s criminal offending

Published 07 Jun 2016

The Court of Appeal has recently decided that where an order has been made forbidding the publication of an Employee’s name, the definition of "publication" does not include the disclosure of the Employee's name to their Employer, provided the Employer has genuine interest in the information.

In the case of ASG v Harlene Hayne, Vice-chancellor of the University of Otago,a University security officer pleaded guilty to willful damage and assaulting a female.  He was however discharged without conviction and granted name suppression.  This meant that under the Criminal Procedures Act 2011 the ‘publication’ of ASG’s name, and any identifying particulars, was prohibited.

During ASG’s sentencing a senior staff member of the University was sitting in the public gallery and later disclosed his offending to human resources and management personal of the University.  On becoming aware of ASG’s offending, the University suspended him and commenced an investigation which later resulted in the issuing of a final written warning.

ASG raised two personal grievances for unjustifiable disadvantages.  The University claimed that he had not been disadvantaged in his suspension or warning, and the disclosure of his offending was not a ‘publication’ and breach of name suppression.

The Court of Appeal agreed with the University and the earlier decision of the Employment Court.  While a ‘publication’ includes word-of-mouth communications and conversations, name suppression is only aimed at preventing disclosure to the public at large.  The University had a genuine interest in knowing about ASG’s offending and therefore the staff member’s disclosure was not a ‘publication’.

The Court placed emphasis on ASG’s duty under the ERA to inform his Employer of the charges against him, and that the nature of the charges, involving violence and property damage, may impact on his ability to perform his duties as a security officer.

Interestingly for Employers, the Court criticised the District Court for granting name suppression without hearing from the University as his Employer.  ASG was granted name suppression as the Court determined it was likely he would lose his job if the University became aware of his offending.  The Employment Court said this was a faulty basis for a name suppression order and the consequences of criminal charges on a employment relationship was a decision for the Employer.  Employers are under health and safety duties to protect anyone on the worksite, and without being aware of, or able to investigate, the conduct Employers cannot meet this obligation.

In granting name suppression, the Court urged Judges to clearly stipulate what is allowed to be communicated to an Employer and between the Employer’s responsible staff.