When calling the Police causes a constructive dismissal

There have been a number of constructive dismissal cases this year.  One of the more intriguing is a recent case where the employee resigned after a Police Officer arrived at her front door to ask about missing pots and pans (Rota-Tawha v Radius Residential Care Ltd, 28 August 2013).

The employee in this case was a healthcare assistant at a Radius Residential Care facility in Hamilton, Maeroa Lodge.  The manager of the lodge had become aware of a number of items “going missing” but was unable to identify who might be responsible for this. The manager was then told by one member of staff, on the condition of anonymity, that the employee had some chairs from the lodge in her dining room, and that she was in possession of ‘pots and pans’ from the lodge’s kitchen. In response to this, the manager contacted the Police and was visited by the lodge’s liaison constable. Relative to the allegations against the employee, the constable was shown the dining room chairs at the lodge. The constable informed the manager that he could visit the employee’s home (along with two others allegedly involved) and report back to the manager in due course. Two weeks later, he did so.

When arriving at the employee’s home, the constable informed her that he had information that she had allegedly taken items from the workplace, specifically mentioning pots and pans. Being confident in her innocence, the employee allowed the constable to have a look around her house. Having done so, he was satisfied that there was no stolen property at her premises. The constable then reported back to the manager that the dining room chairs he had observed at the employee’s home where similar to those at the lodge, but were a different colour.

The employee’s evidence was that she was “shocked and disturbed at these allegations”. Two meetings then occurred and the employee took two days sick leave.  She then resigned from her employment.  In her resignation letter, the employee stated that this was “due to recent events that have wrongfully taken place against me”. Her claim in the Authority was that her resignation was effectively a constructive dismissal, due to the actions of her employer in creating a situation where she no longer had sufficient trust and confidence to continue in her employment.

In determining this case the Authority noted that the employer had arranged for a Police constable to arrive at an employee’s home without any warning, with the constable informing her that she may be in the possession of “pots and pans” belonging to the employer. The Authority did not consider this to be an appropriate course of action in the circumstances, and noted that it was not difficult to understand the shock that the employee had experienced when the constable arrived at her home and informed her of this allegation.

So what was wrong with arranging for the Police to visit a suspected thief?

The Authority’s concern was that the manager had acted on allegations from a possibly unreliable informant who was not prepared to be named, about unidentified pots and pans and a less than accurate identification of chairs. The Authority said that the manager should firstly have investigated whether the lodge was even missing specific pots and pans or chairs, before taking the matter further. While it was accepted that it is appropriate to involve the Police in instances of criminal wrong, it was not appropriate to do so when there was no tangible evidence of possible misconduct by the particular employee.  As the Authority put it, the allegations by the informant were not supported by any meaningful evidence at all.

On the question of whether the employee’s resignation amounted to a constructive dismissal, the Authority held that her resignation was caused by a breach of duty by her employer, which clearly conveyed to her that it did not have trust and confidence in her as an employee. The Authority concluded that by involving the Police and allowing the constable to visit the employee’s home, it was reasonably foreseeable that this would have a substantial effect upon the employee and that her resignation was a distinctly possible outcome. As such, her resignation amounted to a constructive dismissal.  The employee was awarded three months’ lost wages and $5,000 in compensation.

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