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
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
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
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
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''
''I conclude the university's use of the information obtained
[by the manager] was contrary to the order as worded by the
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
Correction: The original headline on this story -
'University dismissal unjustified' - was incorrect and has
now been changed. We apologise for the error, which is