Employers have right to know about criminal charges

In ASG v Harlene Hayne, Vice-Chancellor of the University of Otago[1], the Supreme Court has confirmed that an employer's interest in knowing about criminal charges faced by an employee may prevail over a suppression order, where there is a link between the charges and the employee's role.

The decision upholds the findings in the Court of Appeal's earlier decision (our article about that decision is available here).

Facts

ASG was a security guard working for Campus Watch, the University of Otago's security team. He pleaded guilty to one charge of wilful damage and another of assault in the Dunedin District Court. The Court discharged ASG without conviction on both charges (it held that he was "extremely likely" to lose his job otherwise), and made an order for the suppression of ASG's name and all details of his offending under section 200 of the Criminal Procedure Act 2011 (CPA).

The University's Deputy Proctor was sitting in the public gallery when ASG was sentenced, having been tipped off about the hearing (ASG had not told his employer about the charges). The Deputy Proctor sought legal advice as to whether he could disclose to the University the charges that ASG had pleaded guilty to. He was advised that he could do so as his employer was "genuinely interested' in that information.

The Deputy Proctor then told the Proctor, who passed the information on to the Vice-Chancellor. The Vice-Chancellor decided to commence an employment investigation into ASG's actions, and suspended ASG on pay.

The Tertiary Education Union opposed the investigation on the basis that the University was violating the Court's suppression order. The University proceeded with the investigation anyway, and decided that a final written warning was appropriate. ASG then raised two personal grievances with the Vice-Chancellor, for unjustified disadvantage in relation to his suspension and the final written warning.

The Supreme Court decision

The Court was asked to consider whether the disclosure to the University of information relating to ASG’s appearance in the District Court breached section 200 of the CPA, and, if so, whether it was still open to the University to rely on and use that information.

The Court held that suppression orders under section 200 do prohibit "word of mouth" communications, as well as publication by the media, but this does not encompass dissemination of information to persons that have an objectively established genuine need to know the information. In this case, given the nature of the charges and ASG's role, the University had a genuine interest in knowing that ASG had pleaded guilty to an offence of violence against his spouse.

Because no breach of the suppression orders was found, the Court did not address the University's actions on receipt of the information. It also did not address the Court of Appeal's finding that ASG's failure to disclose the charges was a breach of his statutory obligation of good faith to his employer. However, the Court of Appeal's finding on that point remains good law.

The Supreme Court's decision confirms that if criminal charges against an employee are relevant to their employment, employers may have the right to know and communicate details that are otherwise subject to non-publication orders. For example, this may be the case where an employee in a position of trust pleads guilty to a charge involving dishonesty. Further, where criminal charges exist that are relevant to an employee's role, an employee could be in breach of their good faith obligation by failing to disclose these to their employer in a timely way.

If you have any queries about the issues raised by this case, please contact one our experts listed below.

[1] [2017] NZSC 59.

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