For the most part, you would think that kangaroos were fairly innocuous animals. Apart from lending their image to a popular brand of cornflakes – and a favourite television show of the 1970s – for the most part kangaroos seem to lead lives which are quite innocent, and unconnected with our own.

The kangaroo has, however, given its name to a particular aspect of the law – and in a most unfortunate fashion. A "kangaroo court" is not something that you would wish to encounter.

Far from suggesting that the judge in such a court would be prone to jumping around an awful lot, the expression serves to describe a decision-making tribunal which is improperly constituted, and which may not follow a fair process in reaching a particular outcome.

In the course of an employment relationship an employer is, from time to time, required to sit in judgment of one or more of its employees. In such situations one thing that an employer does not want to be accused of is presiding over a kangaroo court.

One of the most basic obligations owed by employers is the requirement to allow an accused employee the opportunity to answer allegations made against him or her. This principle is underlined in the decision of the Employment Tribunal in Crewther v G&H Trade Training (Unreported, Employment Tribunal, Auckland, 20 September 2001).

Mr Crewther was employed in a trade training centre as a carpentry tutor. A significant part of the centre’s business was dependent upon a referral relationship with (amongst others) Work & Income New Zealand.

The classes which Mr Crewther taught were not without incident. He said that some of his students turned up to class having smoked cannabis. He said that he was required to take action in response to these incidents by warning the students concerned.

Several months after Mr Crewther had commenced his employment, the manager of a WINZ office informed his employer that some serious complaints had been made about him. It appears that one or more students in Mr Crewther’s course (who were presumably also clients of WINZ) had alleged that he had sexually harassed students and that he had asked one or more of his students to provide him with drugs.

WINZ took a very serious attitude to these complaints, and informed the employer that it would not be making further referrals to the business in view of the allegations. Further, the WINZ manager informed the employer that it was not possible to reveal the identity of the complainants.
Mr Crewther’s employer informed him about the existence and nature of the complaints. Mr Crewther denied the accusations and asked (unsuccessfully) to be told who had made them. Mr Crewther was suspended from his job while his employer took further steps.

In due course, the employer made arrangements to meet privately with the students who had made complaints to WINZ. The employer undertook to respect the students’ privacy and to keep their names confidential from Mr Crewther.

Having completed these interviews, the employer reached the view that it was likely that the students were telling the truth. On this basis, a decision was made to dismiss Mr Crewther.

Mr Crewther successfully brought an action against his employer for unjustified dismissal. The Employment Tribunal found that the employer had not followed a fair process in terminating his employment. The Tribunal concluded that Mr Crewther had been put in a position where he was accused of serious criminal matters, but was told that the was not allowed to know who his accusers were, nor any detail of the matters about which he was being accused. The Tribunal said, in fact, that Mr Crewther had been denied natural justice in the worst possible way.

The Tribunal found that there was no evidence to justify the employer reaching a conclusion that it was more than likely that the students were telling the truth, and, reflecting upon the transcript of the interviews with the students (which Mr Crewther had not been allowed to see), concluded that the allegation of harassment was unsupported by any evidence at all.

The Tribunal awarded Mr Crewther a monetary amount representing the unexpired portion of his fixed term contract (almost $20,000) together with compensation of $7,000 for hurt and humiliation.

The employer’s flaw in this case was a failure to follow a fair procedure. Mr Crewther was not given an opportunity to provide a proper response or explanation to the complaints made about him because he was not told who had made the complaints, nor precisely what was said to have occurred. The employer compounded the problem by conducting a private investigation involving interviews of the accusers – without involving Mr Crewther. Mr Crewther was forced to provide responses to complaints that in large part he was required to guess about. While there is no evidence that the employer had actually predetermined its decision to dismiss Mr Crewther, the particular circumstances of the case meant that he was denied fair treatment by the employer who sat in judgment of him.

As the Tribunal recorded, the employer was placed under an unreasonable degree of commercial pressure by the way that it was required to conduct this particular investigation. In such circumstances, it may have been that the employer took steps that it otherwise might not.

The message from this decision is clear: employers who are required to investigate complaints should ensure that an accused employee is given full knowledge of the nature of any accusation – and an appropriate opportunity to respond.

This is a general summary only and should not be taken as a substitute for specific advice.

This article was previously published in the Independent, 23 July 2002
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