A recent Employment Court decision may have extended the reach of what constitutes an unjustified action causing disadvantage to an employee. The case is Johnson v Chief of the New Zealand Defence Force  NZEmpC 192.
Mr Johnson was accused of sending an email to the Deputy Prime Minister alleging the Defence Force was rife with “institutional disobedience” and “dysfunctional leadership”.
The Defence Force commenced a preliminary investigation. Mr Johnson denied sending the email. He argued his email account may have been hacked. After completing the preliminary investigation, the Defence Force sent Mr Johnson a letter concluding it was “very likely” he sent the email but it was prepared to give him “the benefit of the doubt”. No disciplinary process was pursued, so Mr Johnson never received any disciplinary action.
Mr Johnson raised a personal grievance of unjustified disadvantage. Commonly, an employer will respond that there has been no disadvantage to the employee’s employment because there has been no disciplinary action. This is exactly what the Defence Force argued and the Employment Relations Authority agreed.
However, the Employment Court disagreed. The Court held that Mr Johnson had been disadvantaged by the letter even though it stated no disciplinary action or process would occur. The letter was found to have had implications for trust in the employment relationship, made Mr Johnson’s employment less secure and was effectively a formal record of wrongdoing.
The Court found the investigation was inadequate for a number of reasons. The onus had effectively been put on Mr Johnson to prove his email account had been hacked. There was also predetermination as the Defence Force had assumed from the outset that Mr Johnson had in fact sent the email (rather than approaching this question with an open mind).
The Court also said that, despite no formal disciplinary action being taken, it was clear from the letter the Defence Force believed Mr Johnson did in fact send the email. Emails uncovered after the fact demonstrated the decision not to pursue disciplinary action was a strategic one to avoid Mr Johnson bringing a legal claim rather than any view that the accusation against Mr Johnson had not been substantiated – basically Mr Johnson was given a warning without Defence Force actually saying that explicitly.
Mr Johnson was awarded $20,000 as compensation for injury to feelings as a result of the health impacts and stress of the investigation and letter. He was also reimbursed 50% of his IT and legal costs incurred in participating in the investigation.