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Involvement of Police Leads to Constructive Dismissal

Published 04 Oct 2013

An Employee who had a police officer attend her home and tell her that he had information that she had allegedly taken items from the workplace such as pots and pans was held to have been constructively dismissed from her employment after she resigned.

In Michele Rota-Tawha v Radius Residential Care [2013] NZERA Auckland 382, an Employee alleged that the involvement of the police in an investigation rendered her resignation, an unjustifiable constructive dismissal.

The Employer became increasingly aware of items going missing from the workplace. The Employer was approached by a staff member who was concerned about events and that staff member agreed to recount her observations only after receiving an assurance that the staff member’s identity would not be revealed.

The Employer thought that she did not feel that she could accuse any of the Employees named without any evidence. The Employer knew that if she commenced a formal investigation that she would have to reveal the identity of the informant and this was not possible as the Employer had given an undertaking. However, as the police had already been involved in investigations relating to the items taken from the workplace, the police officer offered to visit the homes of the Employees. He would then report back to the Employer about his findings.

A police officer duly visited the Employee’s home unannounced saying that he had information that she had allegedly taken items from the workplace such as pots and pans. The Employee invited the police officer to look around her house and the police officer explained that he was satisfied that there was no stolen property at her premises.The Employee laid a formal complaint with the Employer relating to the police officer visiting her home and at a subsequent meeting the Employee resigned claiming that due to the events which had taken place she believed she had no option but to resign.

The Employee took her case to the Employment Relations Authority (ERA).

The ERA found that the allegations were nebulous from a possibly unreliable informant whom was not prepared to make any real commitment to giving tangible evidence. There was, it was held, an obligation on the Employer to conduct an investigation as to whether the Company could confirm that there were specific pots and pans and specific chairs actually missing before taking the matter further.

It was deemed inappropriate to involve the police when the tangible evidence relating to the chattels were absent. The allegations were not supported by any meaningful evidence. The Employee was entitled to three months lost wages and $5,000.

Employers need to be aware that generally if Employee 1 makes allegations to the Employer regarding Employee 2, the Employer should tell Employee 2 that Employee 1 has made the allegations. The involvement of the police can in some circumstances such as this amount to a constructive dismissal and is likely to be a breach of good faith. Employers need to tread with caution.