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The danger of secret witnesses
A secret witnesses' evidence led to a worker being dismissed the Employment Relations Authority recently heard.
Two employees of Formica (NZ) Limited, John Hunt and Mana Tahere, had an altercation in the staff cafeteria. Both men admitted to standing up, invading each other's personal space, shouting and swearing, and some shoving. Both denied that they had come to blows.
Manager, Stephen McFelin, heard about the incident when he arrived at work and commenced an investigation. A witness claimed to have seen Mr Hunt punch Mr Tahere, but refused to "go on the record".
The company's Production Manager and Human Resources Adviser took over the investigation. Not all workers were interviewed, but those who were denied that any punching occurred.
The investigating managers believed that these workers had conspired together to deny the punching. However, as no one was prepared to come forward and state "on the record" that punching had occurred, they considered that they could not do anything about it. They therefore decided to give both Mr Hunt and Mr Tahere final written warnings for the altercation.
After issuing the final written warnings, a witness came forward and claimed that she had seen Mr Hunt punch Mr Tahere. The company reopened the investigation, but kept the identity of the witness secret. At the conclusion of the investigation, Mr Hunt was dismissed.
Mr Hunt brought an unjustified dismissal claim against the company. He argued that keeping the witneses' identity secret from him was unfair. He also argued that the company had already dealt with the matter by way of a final written warning, and was therefore not entitled to reopen its investigation and dismiss him.
As regards the secret witness, the Employment Relations Authority applied principles developed by the Employment Court that
"generally, the identity of the person or persons making the complaint of serious misconduct will be a very material fact without which an employee will be at an unfair advantage in, first, knowing of the allegation and, second, in having an opportunity to respond to it. There may, however, be circumstances in which, although unfair to the employee, an employer is nevertheless justified in then withholding details of the complainants."
In this case, there was no justified reason for withholding the witnesses' identity from Mr Hunt. In fact, the witness had not even requested anonymity, the Authority said.
As regards reopening the investigation
"the employer, having elected to close the book on this issue, was not entitled to reopen it all shortly afterwards when evidence (which a better conducted enquiry could have produced) emerged from out of the woodwork", said the Authority.
The Authority ordered the company to pay Mr Hunt lost wages of $6010.16 and compensation of $3,500.
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