By Alan Knowsley
Employers and employees have a duty of good faith in employment relationships, which includes the duty to be responsive and communicative.
A recent case in the Employment Court has made it clear that communication is part of the duty of good faith at all times. In the case, the employee was required to attend a disciplinary meeting with her employer.
The employee, via her representative, told her employer that she would not speak during the disciplinary meeting, but would reply in writing to the issues raised. The employee was subsequently dismissed and raised a personal grievance. One of the questions which came before the Court was whether her refusal to speak contributed to her dismissal.
If it did this would reduce the remedies she was entitled to if her dismissal was found to be unjustified.
The Court held that her refusal to speak did contribute to her dismissal. It was a breach of her duty of good faith, because the duty is one which “extends throughout the entirety of an employment relationship including during the course of any disciplinary proceedings.”
While the Court did note that there may be occasions where a written response will be adequate, in most situations, if a personal grievance arises, a lack of speaking will be seen as contributory behaviour, even if the employee has responded in writing.
This is because the employee is required to actively participate in the meeting. One exception to the employee’s duty to communicate with their employer is where a criminal investigation is underway.
If this is the case the employee will not breach the duty of good faith if they remain silent, as they are exercising their right to silence.
The employee is entitled to have a support person/representative attend the disciplinary meeting. The representative is allowed to speak for the employee.
It is important to communicate clearly with your employer at all times, and that they do the same with you.
This will help ensure a productive employment relationship between the parties and will help avoid potentially costly consequences.
Check out the Guide to the Disciplinary Process on the Rainey Collins website under Downloads.
For more information:
Alan Knowsley
Partner, Rainey Collins Lawyers
Tel: 0800 733 4000
Visit: www.raineycollins.co.nz
