Secret Recordings
The Court of Appeal on 07 September 2016 issued an important judgment on how an employer is to conduct a disciplinary investigation that may result in the employee’s dismissal.
The Employment Court had previously concluded that there were procedural flaws in the employer’s investigation and that the employer’s interviewers had asked questions differently during the investigation process to the point where the Employment Court concluded that these were procedural flaws that made the dismissal unjustifiable.
The case involved a 51-year-old male pilot who had entered the hotel room of a 19-year-old female novice flight attendant, unknown to him before the trip, and who had sat on her bed under a blanket. He accepted that there were chairs he could have sat on and that he touched her.
The importance of the decision, however, is that the Employment Court’s very strict adherence to procedural issues was overturned, and the Court of Appeal reaffirmed previous authorities that an employer is not conducting a judicial inquiry and the role of an employer in a disciplinary investigation was to ensure that the process was substantively fair and reasonable, rather than it being an inquiry subject to pedantic scrutiny.
The Court held there was no requirement that all witnesses be questioned in the same way or even to the same degree of detail. The legal requirement is for the employer’s assessment to be substantively fair and reasonable.
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