Justice will be served - even when the witness stays quiet

The Dominion Post 12 September 2009

Natural justice in almost all circumstances requires that an accuser's identity is revealed.

Readers will be aware of the case of a woman dismissed from Hutt Hospital for inappropriately looking up patient records. The employer received an anonymous letter under the Protected Disclosures Act, alleging that an employee had been accessing patient records.

Hutt Hospital said it was alleged that the woman, a supervisor in Lower Hutt Hospital's Breast Screening Unit, accessed the files of patients known to her. It was easy for the hospital to check. The system leaves a trail whenever someone accesses it. The system enabled the employer to establish that the woman had accessed the files in question.

The woman was unable to provide an acceptable explanation for her behaviour and was dismissed. All of this occurred without the hospital's decision-maker or the offending supervisor knowing who made the allegation. We do not know if the matter is going to court, but the Hutt Hospital story shows how it is possible to be dismissed without knowing the identity of the complainant. Something similar happened in a matter that went to the Employment Relations Authority.

Mr Richard was employed by Winstone Wallboards and had worked there for 15 years. He had been found asleep on duty on occasions. He claimed he was not asleep but merely resting, and he went on to explain that he had recently been diagnosed with diabetes and had dietary issues, which caused tiredness.

Winstone was supportive of his health issues, but explained that falling asleep during shifts was considered serious misconduct and he could be dismissed if the conduct continued.

Over the next few months Mr Richard had counselling sessions in which he was encouraged to deal with his dietary issues so that they didn't affect his performance.

Mr Richard's manager later received a photograph on his cellphone of a person lying underneath a sheet of paper on top of a pallet of wallboard. The person who took the photograph and the person who sent it both wished to remain anonymous (and the company agreed to this). One witness said Mr Richard had been lying still for at least 30 minutes, with the sheet of paper over his body and head for the entire time.

In his defence, Mr Richard claimed the photograph recorded a moment in time only and that the company relied on evidence given by secret witnesses that he was lying motionless for half an hour.

Mr Richard disputed the allegation that he was asleep and said he certainly had not been lying in the position portrayed in the photograph for half an hour. He often got tired and would lie down to stretch and do back exercises. He said he had pulled a sheet of paper over himself because he was embarrassed to be seen carrying out these exercises in front of other employees.

Mr Richard said he needed to know the identity of the witnesses so that their credibility and possible motivation for fabrication or exaggeration could be examined. He said it was possible there was some ill-will or dissatisfaction between the informant and him.

Exceptionally, the Employment Relations Authority held that Mr Richard's dismissal was acceptable and that it was not necessary for him to have the identity of the witnesses to defend himself.

Employees are entitled to natural justice when there is a disciplinary investigation and that would normally require that the identity of any complainant would be made available to the person being investigated.

The Winstone case is one of very few cases where the courts have held that a worker under investigation can get a fair hearing without knowing the identity of his accusers or witnesses against him.

The courts generally err on the side of generosity in that regard and findings such as that in the Winstone case are exceptional. In the Hutt Hospital incident, the information was disclosed under the Protected Disclosures Act (the "whistleblower" act).

In certain circumstances it allows employees to disclose information of serious wrongdoing in their workplace to an appropriate authority, while offering protection to the employee concerned.

The act provides strict confidentiality to protect such employees. Their identity must not be disclosed unless they consent, or unless disclosure is essential to the investigation or essential to prevent serious risk to public health, safety or the environment or essential having regard to the principles of natural justice.

In the situation Hutt Hospital faced, the identity of the complainant was not essential in determining whether the employee in question was able to answer the allegations. Electronic records demonstrated that the employee accessed patients' private files. The employee was unable to provide an adequate explanation for that access.

The anonymity of the complainant did not prejudice the employee's ability to answer the allegations, and the complainant's evidence did not rely on questions of credibility being addressed. The anonymity provided by the act was appropriately respected.

Whistleblower laws are an integral part of keeping the public sector honest in many countries.

The laws have been sparsely used in New Zealand to date. The Hutt Hospital reported that this was the first time a disclosure had been made to it under the act.

Such disclosures may become more frequent with the knowledge that anonymity will be protected where possible.

Peter Cullen is a partner at Cullen - the Employment Law Firm

Email: peter@cullenlaw.co.nz