Hang 10 before dialling 111- Employment Law Update December

We may potentially have reality TV shows to blame for the instinctive reaction of wanting to call the police when fears of theft arise. However, employers should be wary of picking up the phone too quickly before conducting their own investigation. Contacting the police as soon as an allegation of theft arises can expose an employer to a range of potential problems, from the right of silence being invoked to findings of flawed disciplinary process and/or constructive dismissal claims.


A recent determination of the Employment Relations Authority demonstrates the risk an employer may face when contacting the police too hastily and failing to take charge of the investigation process themselves. One of the reasons the employee was found to have been constructively dismissed was due to the employer immediately referring the alleged theft to the police before undertaking any investigation process with the employee.

The employer had approached the employee, who was a delivery driver, and told the employee that a member of the public had advised that the employee had been viewed unloading company property at his home address. Checks of the GPS tracking system had shown he was at his home address at the time identified by the complainant. The employer advised that they had contacted the Police and they considered he had stolen Company property. The employer told the employee they had decided to suspend him without pay while they undertook an investigation. The employee heard nothing further from the employer in the following days and never heard from the Police. The employee went into the depot about three days later and asked the employer what was happening with the investigation, to which the employee was advised that the employer could not tell him. Later that day the employee sent a personal grievance letter advising that he considered he had been constructively dismissed.

The Authority found that the employer had committed a number of breaches of its obligations being:

  • the unsatisfactory process in relation to the employee’s suspension,

  • the failure to pay the employee during the suspension,

  • the accusation of theft,

  • reporting the matter to the Police without first speaking with the employee and

  • failing to respond to the employee’s queries as to what was happening with the investigation.

The Authority regarded that these breaches were of sufficient seriousness to make it reasonably foreseeable that the employee would not be prepared to work under the conditions prevailing and there was a substantial risk of resignation. As such he was constructively dismissed.

The determination demonstrates that a calm and measured approach is best rather than making any hasty decisions such as contacting the police in these types of circumstances. In most instances, the employer is best to conduct their own investigation into allegations of misappropriation to establish what has occurred. It could transpire that the allegations were unfounded. Or if they are and the employer does wish to refer the matter the police the employer can refer the matter on to the police after conducting their own investigation. Whatever the case, regardless of whether and when an employer refers a matter to the police the employer must conduct a full and fair investigation and cannot divest any responsibility for doing so by referring allegations to the police.

See Crawford v Penguin Wholesalers (2016) Ltd [2019] NZERA 331


Reproduced with the permission of Wolters Kluwer NZ



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