excellence practicality results law

employment lawyer

Wellington lawyers

Articles

Suspending Over Public Misconduct

SUSPENDING OVER PUBLIC MISCONDUCT

It has recently been in the media that two DJs at George FM were suspended after allegations were raised that they had ‘slut-shamed’ women on their Breakfast Show. While the conduct of the hosts in question is obviously reprehensible it raises an interesting question of how to balance an employee’s rights, the employer’s obligations and the employer’s desire to manage its image through public relations.


It’s not the first time an issue like this has arisen. In July this year two Ministry of Social Development workers were suspended following a racist tirade after being denied entry to a Taupo bar. In August Waikato District Health Board suspended three employees who refused to have flu shots or to wear masks.


Employers are obviously concerned about protecting their reputation when employees’ potential misconduct becomes public knowledge. However, whilst a public statement strongly condemning an employee’s actions and stating they have been suspended sounds good from a PR perspective, it raises serious issues with rights to fair process from an employment relations perspective.


Suspensions are not to be taken lightly. It should not be the employer’s first instinct to suspend an employee, the presumption should be in favour of the right to work. As a brief summary, the law relating to suspensions is as follows:


  • The suspension should not be punitive.
  • In all but unusual circumstances there must be a contractual provision relating to suspension.
  • The principles of natural justice must be followed, the employee must be given an opportunity to respond to the proposal and feedback must be taken into account.
  • Alternative options to suspension should be considered and put to the employee, such as paid special leave or working from home.
  • If the employee is suspended it should be a paid suspension in all but exceptional circumstances.


Fair process must be followed and the suspension must be justified in the circumstances. By announcing publicly that an employee has been suspended there is potential for significant damage to the employee’s reputation. If the matter is then investigated and the allegations aren't upheld then the employee would feel justifiably aggrieved, people are likely to apply the adage “where there’s smoke, there’s fire”. By announcing the suspension employers also run the risk of potentially showing signs of predetermining the outcome of an investigation.


The question then becomes, what should an employer do in this situation? The best course of action, if an organisation feels that a public statement is necessary, is to state that it takes the matters seriously and that they are being investigated. Saying any more runs the risk of a claim against the organisation for a personal grievance.


With social media becoming so prominent, news of employee misdeeds and misconduct can spread like wildfire, as two employees of a Christchurch insurance company found out when they were photographed and filmed having an after-hours office romp by patrons at a bar next door. Companies can scramble to protect their image and reputation, but the obligations towards employees and their rights must be carefully balanced when making statements to the media.

MoST Content Management V3.0.6374