Mr Salt was employed by the Governor of Pitcairn, Mr Fell, who was resident in New Zealand. Ultimately, because of breakdowns in communications between the parties, Mr Fell dismissed Mr Salt on the basis of a general lack of trust and confidence. Mr Salt challenged his dismissal, claiming that it was unjustified.
Some months later, in the course of investigating other matters on the island, Police undertook a forensic examination of Mr Salt’s computer. They uncovered many emails that Mr Salt had sent to associates on Pitcairn Island, while he was still an employee. The emails contained comments that the Court held were, overall, “of a highly disparaging nature pertaining to [Mr Fell] and other government officials”. The emails also indicated that Mr Salt was acting against his employer’s best interests.
While Mr Salt’s dismissal on the basis of a lack of trust and confidence was held to be unjustified, the Court of Appeal was asked to determine the relevance of the emails to Mr Salt’s right to remedies. The Court had little hesitation in concluding that, had they been known about earlier, the emails in question would have justified Mr Salt’s dismissal. However, because they were found nine months later, the issue for the Court was whether they were relevant to his dismissal and, if so, how?
The Court held that the emails were relevant. It said that when determining what remedies to award, the courts were permitted to take into account information which the employer did not know about at the date of dismissal if that information was directly relevant to what, in fairness, the employee genuinely deserved. In this case, in spite of his dismissal not being justified, Mr Salt’s actions were such that his remedies were reduced by 50%.
As this case demonstrates, there may sometimes be merit in employers continuing an investigation into an employee’s misconduct, even after a dismissal. If that employee brings a personal grievance, information found after the dismissal may be relevant if it undermines the merits of an employee’s claim. On a cautionary note, however, the court was quick to say that it was not encouraging witch-hunts and only misconduct of a significant nature would be relevant.