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Are preliminary decisions pre-determination?

Date: 24/03/2015

It has become relatively common for employers to issue preliminary written conclusions and likely outcomes prior to finalizing those decisions in the course of disciplinary processes. This ‘new’ step was introduced as a result of Authority decisions following the 2004 insertion of section 103A of the Employment Relations Act 2000, which, among other things, requires an employer to take into account all of the circumstances of the case before making a final decision.

A recent decision of the Chief Judge of the Employment Court has now cast some doubt on the appropriateness of this practice.

In the case of Edwards v The Board of Trustees of Bay of Islands College, the Chief Judge found that a school principal had been unjustifiably dismissed by his employer, which had issued its findings and proposed outcome on a preliminary basis, and had later confirmed those decisions unchanged.

The Chief Judge noted that while a ‘preliminary decisions’ approach appears to be fair, open and honest to the employee, employers need to exercise caution in terms of the way in which preliminary findings, and proposed outcomes in particular, are couched to avoid pre-determining the eventual outcome.

The Court noted that in many employees’ minds, and in this case in particular, proposing a particular disciplinary outcome at the same time as preliminary factual and misconduct conclusions will often result in a view that there is nothing they can say or do to change their employer’s mind – the outcome has already been pre-determined.

The Judge noted that section 103A requires an employer to keep an open mind and be objective at all stages during its investigations and process before reaching any decisions about what has occurred, whether it is serious misconduct or not, and the outcome that flows from this. Proposing an outcome too early on in this process may not meet this fundamental requirement, and could result in a finding of unjustified dismissal.

Employers engaged in disciplinary processes may need to reconsider the way preliminary conclusions are framed, and the point in the process at which those conclusions are expressed. Providing reasonably concrete views  too early as to what the outcome will be may ultimately be unwise. 

By Blair Scotland