In a recent decision of A Limited v H the Court of Appeal has clarified what is expected of an employer when conducting a disciplinary process.
This case involved a pilot who was dismissed for serious misconduct. His dismissal followed a complaint by a junior flight attendant that the pilot had touched her in a sexual manner while the crew were staying over at a foreign destination. The pilot had said that the touching was inadvertent, but the company rejected that response and determined on the basis of credibility that the alleged touching had occurred.
The Employment Court found a number of flaws in the process followed. The Court appeared to suggest that transcripts of all interviews with relevant witnesses were required, that all individuals needed to be interviewed in person, and each aspect of the complainant’s contradictory account (not simply the “gist”) needed to be specifically put to the employee for comment.
In granting leave for the matter to be heard, the Court of Appeal suggested that the Employment Court had appeared to require from the employer something akin to a “judicial inquiry”.
Helpfully, the Court of Appeal has rejected that “judicial inquiry” type of approach. The Court confirmed that each witness is not required to be questioned in the same way or to the same level of detail. The Court emphasised that there can be a variety of ways of an employer achieving a fair and reasonable process and outcome.
This also means that no one standard approach was required in terms of the interviewing or recording techniques adopted by the employer. More particularly, the Court emphasised that every aspect of the complainant’s account which was inconsistent with the employee’s account did not need to be put to each witness for comment. The Court determined that it was sufficient for the essence of the accounts to be put to the witnesses, particularly in circumstances where each were clear about the general nature of the conduct involved.
Ultimately, the Court stated that the overall fairness and reasonableness of the process was to be considered, rather than subjecting it to “minute and pedantic scrutiny”.
This meant that the employee’s reinstatement was set aside and the Employment Court must now determine the proper remedies for the dismissed employee (if any).