University suspension 'unjustified'

The University of Otago ''unjustifiably'' suspended a staff member based on information suppressed by the court, the Employment Relations Authority (ERA) has found.

The ERA found the university breached a Dunedin District Court judge's suppression order by using information from the staff member's court appearance as the basis for suspending and then giving him a final warning.

University human resources director Kevin Seales declined to comment on the decision because the university was considering whether to challenge the matter through the Employment Court.

In a written decision, ERA member Michael Loftus said in making the suppression order and discharging the staff member without conviction, the judge sent a ''clear message'' the charge did not warrant a penalty and his ''employment should be protected''.

The university should therefore not have acted on the staff member's court appearance, which his work manager attended in the public gallery.

''Instead, it chose to ignore the judge's comments and proceed with a second round of action.''

''Its managers went so far as to both consider and recommend dismissal.''

This was not the actions of a ''fair and reasonable employer'' and ''unjustifiably disadvantaged'' the staff member, Mr Loftus concluded.

It was also unfair to the staff member that it took the university four months to finalise the issue.

''That, I conclude, was inordinately long in the circumstances and also unreasonable.''

In summarising the events which led up to the staff member being ''unjustifiably disadvantaged'', Mr Loftus said the issue began when his manager learnt he was to appear in court.

The manager took notes during his appearance in court and reported the matter to three managerial colleagues.

He also wrote a report on the issue, which was seen by three or four other university staff.

Following legal advice, the university initiated a disciplinary investigation and told the staff member he would be suspended in the meantime.

This led to an exchange which continued for about four months, with the university trying to progress the investigation and the staff member arguing it was inappropriate to do so given the suppression order.

Mr Loftus found that writing a report based on the staff member's court appearance counted as ''publishing'' suppressed information.

''I conclude the university's use of the information obtained [by the manager] was contrary to the order as worded by the judge. ''

Mr Loftus left it to the two parties to address the issue of remedies, but they could return to the ERA if they were unable to agree.

Dunedin lawyer Len Andersen said the ERA decision was a ''very interesting'' one.

''It's always been problematical as to what exactly is covered by a suppression order,'' Mr Anderson.

The fact the man's manager wrote a report would ''seem'' to count as ''publication''.

However, it could have been a different story if he just ''told the boss''.

It was possible the manager could be prosecuted for breaching suppression, but it would need to be established to a ''criminal standard'' in order to be successful.

''The ERA decision ... is not binding on the courts. If there was to be a prosecution, they could not rely upon the ERA decision.''

Correction: The original headline on this story - 'University dismissal unjustified' - was incorrect and has now been changed. We apologise for the error, which is regretted. 

vaughan.elder@odt.co.nz