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Goddard, John --- "Teacher Misconduct, The Right to Silence and the Duty of Good Faith: Implications for Boards of Trustees and Teachers" [2011] CanterLawRw 16; (2011) 17 Canterbury Law Review 251

Last Updated: 20 May 2013


John Goddard*

I. Introduction

A teacher who engages in misconduct can potentially face three separate investigations:

(1) An investigation by their employer to determine whether the misconduct warrants dismissal.

(2) An investigation by the Teacher’s Disciplinary Tribunal (the Tribunal)

to determine whether the conduct amounts to serious misconduct.1

(3) A criminal investigation to determine whether an offence has been committed.

Once a defendant has been charged with a criminal offence, he or she can rely on the right to silence and/or the privilege against self-incrimination. These rights may entitle a teacher to apply for and obtain an injunction preventing a Board of Trustees from conducting an investigation and carrying out disciplinary measures pending the outcome of a criminal investigation. This could be a problem for a Board given the delay in defended criminal proceedings. For example, the median length of time to dispose of a jury trial is currently 16 months.2 Often, time will be of the essence for an employer and/or the Tribunal to determine the outcome of an investigation, especially where children are placed at risk.

The purpose of this paper is to explore the tension between the duty of good faith in employment law (specifically the duty to be “active and constructive in establishing and maintaining a productive employment relationship in which the parties are... responsive and communicative”)3 and the right to silence in criminal law. According to Judge Harvey:4

Without the privilege against self-incrimination, evidence obtained in another forum can become evidence for the prosecution in a criminal trial. The reliance by the accused upon a pre-trial right of silence in the face of Police investigation is nullified by the availability of precisely that evidence obtained under oath from another forum. The contradictions between the pre-trial right of silence and the admissibility of incriminating evidence obtained in another forum become clear. The result is a total lack of integrity in the process.

* John Goddard BA LLB(Hons). Judges’ Research Counsel for the Christchurch District Court. The author thanks John Hughes and an anonymous referee for their helpful suggestions.

1 See the decisions of the Teachers’ Disciplinary Tribunal at <>.

2 Q & A Scoop News “Criminal Justice Changes” (2010) <>.

3 Employment Relations Act 2000, s 4(1A)(b).

4 D Harvey “The Right to Silence and the Presumption of Innocence” [1995] NZLJ 181 at



Therefore, the purpose of this paper is to resolve these contradictions in a way that preserves the integrity of the system of justice. The scope of this paper is limited to teacher misconduct that could potentially result in the teacher’s conviction for a criminal offence.

In Part II, five relevant influences that determine whether employment investigations should be prevented from proceeding will be considered:

(1) the right to silence;

(2) the privilege against self-incrimination; (3) the duty of good faith;

(4) the equity and good conscience jurisdiction of the employment institutions; and

(5) considerations relating to the Education Act 1989.

In Part III, the case law in relation to applications for a stay of civil proceedings and applications for injunctions in the employment institutions will be evaluated. Key questions include whether the case of McMahon v Gould5 is interpreted consistently across different jurisdictions in New Zealand and whether the approach in that case is relevant to the current New Zealand statutory context. In Part IV, the divergence in case law between the employment institutions and other fora will be discussed.

In Parts V and VI, the case law will be used as a basis for considering the implications for both a Board of Trustees (a Board) and a teacher facing allegations of serious misconduct. The range of legitimate responses for a Board will be considered in light of the Board’s legal obligations.6 Similarly, the responses of a teacher will be assessed in the light of the possible penalties a teacher might face as an outcome of an employment investigation, a disciplinary hearing and criminal proceedings.

II. Key Influences

A. The Right to Silence

In Smith v Director of Serious Fraud Office (Smith), Lord Mustill described the right to silence as a “disparate group of immunities”.7 They include:8

(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.

(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.

5 McMahon v Gould (1982) 1 ACLC 98 (NSWSC) at 101.

  1. These implications include the application of the new test of justification under s 103A of the Employment Relations Act 2000, i.e. whether the employer’s actions were what a fair and reasonable employer could have done in all the circumstances.

7 Smith v Director of Serious Fraud Office [1992] 3 All ER 456 (HL) at 464.

8 Ibid.

(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.

(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.

(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.

(6) A specific immunity ... possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.

The first immunity is recognised in s 14 of the New Zealand Bill of Rights Act 1990 (NZBOR A) which provides for freedom of expression. Generally, if a person is free to express an opinion, he or she may also choose to remain silent.9 This immunity is not relevant in terms of this paper.

The second immunity relates to the privilege against self-incrimination. This privilege has received statutory recognition in New Zealand.10 This privilege or immunity applies in circumstances where a defendant’s actions are being investigated by police or other prosecuting authority although no criminal charges have been laid.11 Accordingly, it is relevant for the purposes of this paper.

The third immunity relates to investigations by police before charges have been laid. In New Zealand, this immunity is not protected by either s 23(4) or s 25(d) of NZBOR A.12 However, the immunity is protected by the privilege against self-incrimination. This immunity is relevant for the purposes of this paper.

The fourth immunity protects a defendant from giving evidence in his or her own trial and from facing cross-examination. This immunity has been affirmed by s 25(d) of NZBOR A.13 This immunity is also recognised by s

73 of the Evidence Act 2006 (EA).14 It is relevant in the sense that it is only when a defendant chooses not to give evidence in a criminal trial that there may be proper grounds for the court to grant a stay of civil proceedings.

9 P Rishworth et al The New Zealand Bill of Rights (OUP, Melbourne, 2003) at 647.

10 Evidence Act 2006, s 60.

11 See Russell v Wanganui City College [1999] NZEmpC 65; [1999] 1 ERNZ 654 and R v Barlow (1995) 14 CRNZ 9; (1995) 2 HRNZ 635 (CA) where a majority of the Court held that the right of silence only applies if a defendant has been arrested or detained. See below for further discussion on the privilege against self-incrimination.

12 See R v Barlow, above n 11.

13 New Zealand Bill of Rights Act 1990, s 25(d) which provides: minimum standards of criminal procedure. Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: ... (d) The right not to be compelled to be a witness or to confess guilt:

14 Evidence Act 2006, s 73.

The fifth immunity provides that a defendant is not required to answer questions posed by police or officers conducting similar roles once a defendant has been charged. This immunity is also protected by s 25(d) of NZBOR A. The immunity ensures that any confession made by a defendant is voluntary. This paper deals with the situation where there is no voluntary confession because if there is a voluntary confession, then the most likely outcome is that the defendant will plead guilty and that any application for a stay or an injunction is unnecessary because the relevant information is already in the hands of the prosecuting authority.

The sixth immunity protects the defendant by preventing adverse comment being made if he or she chooses not to give evidence. This immunity is subject to controversy.15 Presumably, if the Criminal Procedure (Reform and Modernisation) Bill 2010 (the Bill) is passed into law in its present form, it would be a small step from the prosecution inviting the fact finder to draw an adverse inference if a defendant fails to disclose his or her defence to the prosecution inviting an inference to be drawn through a lack of evidence.16

Both are based on the premise that a lack of co-operation with authorities tends to indicate guilt. At the time of writing, there is no jurisdictional basis for the drawing of adverse inferences if a defendant decides not to give evidence.

The right to silence appears to be used as an umbrella term to embrace the range of immunities. Critically, none of the immunities are absolute. They vary in their origins, significance and the extent to which they have been limited by statute.17 Therefore, the statutory context and the factual matrix are crucial in determining whether a particular immunity applies and whether there is a proper basis for granting a stay.

Harvey argues that the right to silence has been confused with the privilege against self-incrimination. He suggests that the right to silence is not a right in itself but an important ingredient of the presumption of innocence of a defendant and the burden of proof that rests with the prosecution.18

According to Harvey, the presumption of innocence, the burden of proof and the right to silence are elements in a complex matrix of the adversarial/ accusatorial process. He stresses that this process places a high degree of value on human rights, limitations on state power and integrity in the judicial process as opposed to the final outcome of cases. In other words, justice must

15 See for example the Australian decisions of Petty and Maiden v The Queen (1991) 173 CLR

95 (HCA) and R v Weissensteiner [1993] HCA 65; (1993) 178 CLR 217 (HCA) where the High Court held that while silence could not be used as evidence against a defendant, the exercise of silence may have the consequence of strengthening inferences that the fact finder draws from unchallenged prosecution evidence.

16 The Criminal Procedure (Reform and Modernisation) Bill was not passed in its current form and it is not possible to draw adverse inferences from the failure of an accused to identify issues in dispute.

17 Smith v Director of Serious Fraud Office, above n 7, at 463.

18 Harvey, above n 4.

not only be done, it must be seen to be done. This aspect incorporates the right to a fair trial. Further, he states that any interference with the right to silence risks undermining the complex matrix of rights.19

These rights are recognised and affirmed in s 23(d) (the right of any person who has been arrested and detained to refrain from making any statement and to be informed of that right), s 25(a) (the right to a fair and impartial hearing), s 25 (c) (the right to be presumed innocent) and s 25 (d) (the right not to be compelled as a witness) of NZBOR A. The European Court of Human Rights has described the right to silence as a “recognised international [standard] which lie[s] at the heart” of a fair criminal process.20

The authors of the New Zealand Bill of Rights suggest there is a unifying principle underlying both the right to silence and the privilege against self- incrimination.21 They suggest that a purposive interpretation of ss 23(4) and

25(d) is appropriate since the common law right to silence was interpreted in this way prior to the enactment of NZBOR A.22

It can be argued that the rights recognised in NZBOR A sit alongside a wider common law right to silence because s 28 of NZBOR A provides that an existing right is not abrogated merely because it has only been recognised in part. It follows that if NZBOR A provides for a more restricted expression of the right of silence than the common law did, then the provisions in NZBOR A will not abrogate the wider common law right to silence. This would result in a statutory right of silence sitting alongside a common law right of silence.23 This is an inevitable result given that NZBOR A is not a code.24 This interpretation is consistent with the long title of NZBOR A:25 “To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights”. Article 14 of the ICCPR provides for minimum guarantees in criminal procedure including the right to silence. Therefore,

19 Harvey, above n 4, at 183 where the author cites the following article: H Packer, “Two Models of Criminal Process” (1964) 113 Univ Pa LR 1 where Packer identifies two models of criminal process: (1) the Due Process model and the Criminal Control model. The latter focuses more on efficiency and outcome. Perhaps, New Zealand is moving towards a Criminal Control model of criminal process which focuses more on efficiency and outcome as opposed to a model that is more rights-oriented and limits the exercise of executive power.

20 Murray v United Kingdom [1996] ECHR 3; (1996) 22 EHRR 29 (ECHR) at [45].

21 P Rishworth et al, above n 9, at 646.

22 Ibid.

23 In R v Barlow, above n 11, Richardson J considered that relevant provisions of NZBOR A did not abrogate common law protections such as those contained in the Judges’ Rules.

24 Two examples of rights that are not recognised by NZBOR A are the right that a person’s reputation should be protected and the right to privacy.

25 New Zealand Bill of Rights Act 1990, long title. Article 14 of the ICCPR (1966) materially provides:

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:


(g) Not to be compelled to testify against himself or to confess guilt.”

NZBOR A should not be interpreted in a way that restricts or limits the protections afforded to criminal defendants. This approach found express recognition by the Employment Court in Russell v Wanganui City College.26

However, the rights in NZBOR A appear to be recognised as disparate rights as opposed to a complex matrix.27 Their commonality is signalled in the section title to s 25 (Minimum standards of criminal procedure). But this title says nothing about the inter-relationship between them. It is correct to describe the rights as integral to the adversarial process of criminal justice. They are indicators that the due process model of justice is the dominant model in New Zealand. This model places value on the immunities identified by Lord Mustill in Smith. If the analysis of Judge Harvey is accepted, then statutory encroachment on those immunities would be less likely. It is also less likely that civil bodies such as the employment institutions and the Disciplinary Tribunal (an independent quasi-judicial body of the New Zealand Teachers Council) would interfere with the matrix of procedures and values. On the other hand, in Smith, Lord Mustill observed in the United Kingdom context that the privilege against self-incrimination had been limited by a number of statutes and in a number of ways.28

The recognition by Lord Mustill of disparate immunities appears

to be inconsistent with Harvey’s complex matrix theory that each of the immunities is inter-dependent with a defendant’s right to a fair trial, the presumption of innocence and the burden of proof. This does not detract from Lord Mustill’s statement that the “right of silence” encompasses a body of disparate immunities and that it is helpful to identify the particular immunity in question. This is especially so in New Zealand where the statutory recognition of the immunities varies in nature and scope.

The importance of the immunities to the criminal process and the amount and variety of statutory exceptions to the immunities underscore the need to carefully examine the statutory context in relation to any application for a stay. It is also relevant to determine which particular immunity is being invoked and which stage the criminal prosecution has reached. For example, if no charges have been laid and a defendant has not been arrested or detained, then he or she will be relying on the privilege against self- incrimination as opposed to any of the immunities under the rubric of the right of silence. However, there is inter-dependence between the privilege against self-incrimination and the right to silence because if the privilege is compromised, then the right to silence that follows could be undermined.29

26 Russell v Wanganui City College, above n 11. Note that this broad interpretation of the right to silence appears to be inconsistent with both the majority and the minority approach in R v Barlow, above n 11.

27 In R v Barlow, above n 11, the Court of Appeal described this as a “rights-centred approach” in evaluating the scope of specific rights. This approach can be contrasted with the “deterrence” approach relied on by American constitutional jurisprudence. However, Cooke P disagreed with this analysis. The President thought that interpretation of human rights was evolving incrementally and moving towards a position where there is an international law of human rights.

28 Smith v Serious Fraud Office, above n 7, at 472. A key restriction for the purposes of this paper is contained in ss 139AY and 139AZ of the Education Act 1989 which enable the Tribunal to compel witnesses to provide evidence.

29 Harvey, above n 4, at 184.

B. The Privilege against Self-Incrimination

The privilege against self-incrimination has been described by Justice Goldberg as a landmark “in man’s struggle to make himself civilised.”30 It has also been criticised:31

The privilege against self-incrimination stands in need of a convincing justification. To be sure, there is no shortage of eloquent testimonials to the hallowed place of the rights to remain silent in the pantheon of Anglo-American liberties. But defenders of the privilege have yet to substantiate the rhetoric that cloaks the privilege in a haze of noble words.

The justifications relied on by Justice Murphy are:

(1) the avoidance of the cruel trilemma of self-accusation, perjury or contempt;

(2) the preference for an accusatorial system;

(3) the prevention of inhumane treatment and abuses; (4) the maintenance of a fair State-individual balance;

(5) the protection of the human personality and individual privacy; (6) the unreliability of self-deprecatory statements, and

(7) the protection of the innocent.32

In its discussion paper, the New Zealand Law Commission (the Commission) relied on a number of these justifications in concluding that the core justification for the privilege remained, including that the privilege was consistent with an accusatorial system, that it helped to maintain a fair balance between the individual and the state and that it prevented inhumane or degrading treatment in the course of criminal investigations.33

According to Gallavin, the most persuasive justification for the privilege is the unreliability of statements given by defendants who are forced to do so.34

At common law, the privilege was invoked if a defendant risked exposure to any criminal prosecution, civil penalty or forfeiture.35 The Commission sought to restrict the scope of the privilege. Parliament largely adopted the recommendations of the Commission in enacting s 60 of the Evidence Act 2006 (EA). Most commentators suggest that the statutory privilege is restricted to circumstances where there is a real or appreciable risk that a person would face criminal prosecution if the privilege was not invoked based on the definitions of “incriminate” and “self-incrimination” contained in s 4 of the EA.36 The information that is protected is specific information, i.e. the privilege is not generic. Therefore, only information that would give rise to the risk of criminal prosecution is protected by the privilege.

30 Murphy v Waterfront Commission [1964] USSC 136; 378 US 52(SC) at 55.

31 D Dripps “Self-Incrimination and Self-Preservation: A Skeptical View” (1991) 2 University of Illinois Law Review 329.

32 Murphy v Waterfront Commission, above n 29.

33 Law Commission The Privilege against Self-Incrimination (NZLC PP 25, 1996) at 29-30.

34 C Gallavin, Evidence (LexisNexis NZ Ltd, Wellington, 2008), at 272.

35 Blunt v Park Lane Hotel Ltd [1942] 2 KB 253 at 257; [1942] All ER 187 at 189.

36 Evidence Act 2006 s60

The scope of the privilege appears to exclude employment investigations

– at least in the private sector – because employment investigations do not require an employee to disclose information in the course of a proceeding and an employer is not exercising a statutory power or duty. This has serious implications for an employee due both to the ability of the prosecution to rely evidentially on the findings contained in an employer’s investigation without having to obtain the evidence themselves37 and the rejection of the argument that answers to questions obtained in an employer’s investigation are inadmissible as being involuntary in nature since an employee is under no duty to make statements contrary to interest.38 Clearly, the privilege applies to proceedings before the Authority or the Court. It is possible that the privilege applies to employment investigations in the education setting on the basis that Boards of Trustees are required to be good employers.39

If this is not the case and employment investigations fall outside of the scope of the statutory privilege, it could be argued that they are covered by a wider common law privilege. This argument is based on the likelihood that the EA is not a code.40 However, discrete parts of the EA may codify particular areas of the law of evidence.41 There is no way of knowing whether the law of privilege is such an area. The closest the courts have come to resolving this issue is holding that the common law exceptions to the “without prejudice” privilege remain.42 The position remains untested: it is possible that employment investigations are subject to a common law privilege that has survived the enactment of the EA. One commentator has suggested that the scope of the privilege does extend to employment investigations.43

The statutory privilege is not absolute. It may be abrogated by statute. Some examples of abrogation by statute include s 267 of the Companies Act

1993, s 248 of the Electoral Act 1993, ss 69T and 69U of the Securities Act

1978, ss 27 and 28 of the Serious Fraud Office Act 1990 and ss 139AY and

139AZ of the Education Act 1989. The question arises in the employment context whether the privilege is abrogated or limited by any provision in the Employment Relations Act 2000 (the ER A).

37 R v Dawson (2004) 2 NZELR 126 (CA).

38 R v Lane (2005) 2 NZELR 712 (CA).

39 Crown Entities Act 2004, s 118

40 Generally commentators agree that the EA is not a code despite the Commission’s wish that: “[a]n evidence code should be a true code in the sense of being comprehensive, systematic in structure, pre-emptive of the common law and based on principles.” (New Zealand Law Commission, PP14, 1991). See C Gallavin, Evidence (LexisNexis NZ Limited, Wellington

2008) at 15-20; D Mathieson (ed) Cross on Evidence (NZ) (online looseleaf ed, LexisNexis) at [EVAIntro.6]; and Sir Bruce Robertson (ed) Adams on Criminal Law – Evidence (online looseleaf ed, Brookers) at [EA10.02].

41 See D Mathieson (ed), above n 39, at [EVAIntro.7] where the authors suggest that ss 55 and

56 of the Evidence Act 1995 (Cth) have codified the law in relation to relevance.

42 New Zealand Institute of Chartered Accountants v Clarke [2009] NZHC 249; [2009] 3 NZLR 264; (2009) 19

PRNZ 246 (HC) at [44].

43 T Couch, “The Right to Silence” in Employment Law Conference, November 2002 (New

Zealand Law Society, Wellington, 2002) 91 at 97.

The privilege may be abrogated expressly or by necessary implication.44

There is no express provision in the ER A that abrogates the privilege. However, s 4(1A)(b) of the ER A requires parties to be “responsive” and communicative” in establishing and maintaining constructive relationships as elements of the duty of good faith. The duty of good faith is wider in scope than the implied duty of trust and confidence.45 It could be argued that s

4 has abrogated the privilege against self-incrimination. In other words, in employment contexts, the privilege against self-incrimination only survives to the extent that it has not been abrogated by the duty of good faith which requires parties to be “responsive and communicative”. If an employee relies on the privilege as a basis for refusing to respond to questions from an employer, then the employee is not being responsive and communicative. He or she is being evasive or uncommunicative. Conversely, it could be argued that an employer is not acting in good faith if he or she requires an employee to surrender his or her privilege against self-incrimination. This will especially be so if an employer intends to pass on information to the Police but does not inform the employee that their answers may incriminate the employee.46

Usually, clear statutory words are required to limit or remove fundamental

human rights. In R v Pora, Tipping and Elias JJ observed that “[i]t is improbable where human rights are affected that Parliament would do by a side wind what it has not done explicitly.”47 The privilege against self- incrimination is a fundamental right even though it has not been affirmed in NZBOR A unless and until a suspect has been arrested and detained. Under normal circumstances, abrogation of the privilege would require express words. This is supported by s 6 of NZBOR A which provides that where the meaning of a statute is unclear, the meaning consistent with the rights and freedoms affirmed in NZBOR A should be preferred. Section 6 does not apply to the privilege against self-incrimination because the privilege is not one of the affirmed rights and freedoms. However, the related right to silence is affirmed. If the duty of good faith is interpreted in a way that abrogates the privilege against self-incrimination, then this interpretation would undermine the rights in both s 23(4) and s 25(d) of NZBOR A because the police could postpone arresting a defendant until the defendant had disclosed sufficient information that would make successful prosecution of the defendant more likely. Therefore, it is more likely that a court would require clear words before holding that the privilege had been abrogated because:48

[Section 23(d)] must not be looked at in too narrow a way for if the accused person can be forced to make a statement about the subject-matter of the proceedings in some other forum, then that would defeat the right to silence and provide the prosecution with ammunition that otherwise would not be available to it.

44 Evidence Act 2006, s 60(3).

45 Employment Relations Act 2000, s 4(1A)(a).

46 Employment Relations Act 2000, s 4(1).

47 R v Pora [2000] NZCA 403; [2001] 2 NZLR 37(CA) at 50.

48 Russell v Wanganui City College, above n 11.

However, in enacting s 60(3) of the EA, Parliament has departed from this approach. Section 60(3) expressly provides that the privilege against self- incrimination may be abrogated by necessary implication. This appears to override the rule in Pora, at least in relation to the privilege against self- incrimination. This position is problematic because even senior judges are likely to disagree about whether implied repeal is necessary.49 It is suggested that abrogation by implied repeal is inappropriate in relation to the privilege because (1) it is likely to lead to uncertainty which will add to difficulties faced by individuals seeking to organise their affairs; and (2) it is unnecessary because Parliament has been able to use express words to abrogate the privilege in a range of contexts when abrogation is justified.

Even though the privilege against self-incrimination may or may not be abrogated by virtue of s 4 of the ER A, as a matter of policy, the employment institutions are unlikely to hold that the privilege has been abrogated by the statutory duty of good faith. For example, in Sharpe v Chief of the New Zealand Defence Force50, the Authority rejected an argument that the duty of good faith prevented an employee from refusing to participate in an employment investigation because Parliament could not have intended that the duty of good faith would override s 23(4) of NZBOR A or the common law right to silence.51 This position appears to revert to the Pora approach that abrogation of fundamental rights requires clear words notwithstanding s 60(3) of the EA. It also confirms a policy decision against employment institutions influencing outcomes in criminal proceedings. Therefore, even if s 4 of the ER A was sufficient to abrogate the privilege against self- incrimination, it would be open to the employment institutions to rely on their equitable and good conscience jurisdiction to hold that the privilege survived the enactment of s 4(1A) of the ER A.52

One solution canvassed by the NZLC is to follow the Australian model and provide a party with a certificate that would prevent any information disclosed by an individual in a civil proceeding from being used against him or her in a criminal proceeding.53 The Law Commission differed from the Australian position in that the Commission did not consider that a

49 See for example Regal Castings v Lightbody [2008] NZSC 87; [2009] 2 NZLR 433 where Tipping and McGrath JJ disagreed over whether indefeasibility of title could be impliedly repealed by a provision of the Property Law Act 1952 and Taylor v New Zealand Poultry Board [1984] 1 NZLR 394(CA) where McMullin J dissented from the majority judgment of Cooke and Somers JJ.

50 Sharpe v Chief of the New Zealand Defence Force ER A Auckland A A 101/10, 4 March 2010.

51 Ibid, at [32]. Note that an employee may refuse to answer an employer’s questions but in these circumstances, dismissal may be held to be justified: Tamarua v Toll NZ Consolidated Ltd [2007] ERNZ 52 (EmC) where the dismissal of an employee was held to be justified in circumstances where the employee believed he was entitled to take eight jam jars but did not provide his employer with an explanation.

52 Although this proposition must be viewed with caution in light of the recent decision of Vice-Chancellor of Massey University v Wrigley [2011] NZEmpC 37; (2011) 9 NZELC 93,782 where the Court held that s 4(1A)(c) of the ER A required employers to provide relevant information to employees, including information relating to other employees. In other words, the duty of good faith in the employment context requires provision of information that would be viewed as confidential in other contexts.

53 See for example Evidence Act 1995 (Aust), s 128. Note that an employer’s investigation is not a “proceeding”.

court should be able to override the privilege “in the interests of justice” because abrogation of the privilege was a matter for Parliament.54 However, if disclosure was made voluntarily, then an individual would still be awarded a certificate that would guarantee immunity.

Potentially, the use of a certificate could be beneficial. It would allow employment proceedings to be concluded in a timely manner while precluding them from influencing the outcome of criminal proceedings. A certificate would enable an employee to comply with the duty of good faith and be responsive and communicative in the context of an employment investigation without increasing the risk of an adverse outcome in a criminal case.

C. The Duty of Good Faith

It is clear that once an employee has been charged with a criminal offence, then he or she can refuse to comment or to answer questions if the answers would tend to incriminate the employee. It also seems possible that if an employee had not been charged with an offence but a criminal investigation was under way, the employee could refuse to respond to allegations by invoking the privilege against self-incrimination. The duty of good faith, as amended in 2004, appears to be in conflict with the right to silence and the privilege against self-incrimination. The duty of good faith imposes significant additional obligations on an employer. In X v Auckland District Health Board55, Chief Judge Colgan noted that:

An employer investigating serious allegations made against an employee cannot simply act as a proverbial sponge, a non-communicative observer and critic. In addition to the specific statutory requirements for responsiveness and communicativeness in s4(1A) of the Act, longstanding requirements of fair dealing require significant conclusions, including tentative ones, to be articulated to the employee.

The Chief Judge viewed the good faith provisions as requiring “participatory discussion”56 in the context that head nodding by an employer was interpreted by an employee as acceptance of the employee’s explanation and by the employer as communicating understanding of the explanation as opposed to acceptance. A breach of good faith obligations exposes both an employer and an employee to risk. If an employer breaches good faith by failing to give an employee the opportunity to comment in response to an allegation of serious misconduct in the course of dismissing an employee, he or she runs the risk that an employment institution will find that the dismissal was unjustified. If an employee breaches the obligation of good faith by failing to provide an employer with an explanation for alleged serious misconduct, the employee runs the risk that the employer will decide to dismiss in any event and that the decision will be upheld by an employment institution.57 Further, it is probable that even if an employee can establish a personal grievance, if the employee has remained silent during the employer’s

54 Law Commission, above n 32, at 120.

55 [2007] ERNZ 66; (2007) 8 NZELC 98,749; (2007) 4 NZELR 291 (EmC) at [153].

56 Ibid.

57 However a decision to dismiss on limited information was held to be justified in Tamarua v

Toll NZ Consolidated Ltd, above n 50.

investigation, he or she may be subject to a contributing behaviour order.58

However, if the employee attempts to explain serious misconduct that has criminal implications, he or she runs the risk that the explanation will be passed on to the prosecution. This is the employee’s dilemma.

Recently, trial periods have been introduced.59 These provisions enable employers to hire employees on a trial basis. During the trial period, the employer may dismiss an employee without giving written reasons under s 120. In these circumstances, the employee will not be able to lodge a personal grievance claim against the employer. Specifically, the employer is under no obligation to provide the employee with information that forms the basis of an employer’s decision to terminate the employment relationship. Further, the employee has no opportunity to comment on the reasons for the dismissal. Although, there is authority that an employer must provide an employee with the reasons for the dismissal as an aspect of good faith.60

This means that the duty of good faith influences the court’s construction of trial periods. Even so, the introduction of trial periods appears to have weakened the statutory duty of good faith. If the duty of good faith has been diluted, it is more difficult for employers to claim that employees are failing to fulfil their good faith obligations if employees claim the right to silence. In any event, this would be largely academic because employers do not need to carry out a disciplinary investigation if an employment agreement contains an operative trial provision because, if the trial period provision is effective, the employer can dismiss at will.

It is suggested that the introduction of trial periods has had the effect of diluting the duty of good faith because it is now possible to contract out of some aspects of the duty. This is at variance with the purpose of the

2004 amendment to the statutory duty. The amendment provided that the duty of good faith is wider than the implied obligation of mutual trust and confidence.61 Parliament’s intention in enacting the amendment appears to have been to ensure that the statutory duty could not be contracted out of

whereas an implied contractual term could be ousted by an express term to the contrary.62 Nevertheless, even in its diluted state, the duty of good faith remains a relevant factor in determining whether an employer should be prevented from carrying out its investigation.

58 Radius Residential Care Ltd v McLeay [2010] NZEmpC 149 at [56].

59 See Employment Relations Act 2000, ss 67A and 67B. Note that most teachers are employed pursuant to collective agreements which do not contain trial periods, e.g. NZEI Te Riu Roa “Primary Teachers’ (including Deputy and Assistant Principals and Other Unit Holders) Collective Agreement 26 November 2010 – 15 August 2012” (2011) <>.

60 Smith v Stokes Valley Pharmacy (2009) Ltd [2010] NZEMPC 111at [82] and see Personal Grievances (online looseleaf ed, LexisNexis) at [3.58.3]. In fact, it may be argued that the statutory duty of good faith has diluted trial periods.

61 Employment Relations Act 2000, s 4(1A)(a).

62 Mazengarbs Employment Law (online looseleaf ed, LexisNexis) at [ER A 4.5A].

D. The Equity and Good Conscience Jurisdiction

The equity and good conscience jurisdiction is provided for in s 189 of the ER A. Section 189 provides for the Employment Court to determine matters in equity and good conscience as it thinks fit. The essence of the jurisdiction was captured succinctly by Thomas J:63

But underlying the [employment] relationship the mutual obligation of confidence, trust, and fair dealing remains fast. Hence, neither the employer nor the employee can properly resent the exercise of the Court’s equity and good conscience jurisdiction if they seek to press a technical point; assert, without demonstrating real prejudice, a rigid reliance on the pleadings; take advantage of human error or, generally speaking, endeavour to repudiate an agreement or a promise duly acted upon. In such circumstances, the Court has the power, if not the obligation, to seek to achieve justice between the parties according to the equity and merits of the case. It accords utterly with any notion of equity and good conscience that parties should be held to their bargain and to their promises. In probably no other area of human activity is this aspiration more important than in the context of employer-employee relations.

The authors of Mazengarbs Employment Law stress the importance of the purposive component of s 189. This requires the jurisdiction to be invoked to fulfil the purposes of supporting successful employment relationships and promoting good faith behaviour.64 Promoting good faith behaviour includes promoting the parties to be responsive and communicative. This might be taken to suggest that the jurisdiction should not be invoked to allow parties in an employment relationship to refuse to disclose information on the ground that it may incriminate one of the parties. Nevertheless, the Court has held that:65

It is clear that the ultimate objective of the Court in dealing with an application for stay is to do justice and this sits comfortably with the Court’s equity and good conscience jurisdiction.

This suggests that the jurisdiction may be used to fill any gaps that would result from a literal interpretation of statutory provisions concerning the right to silence or the privilege against self-incrimination. Therefore, either a teacher or a Board could prevent a disciplinary proceeding from proceeding if granting a stay falls within the equity and good conscience jurisdiction.

E. The Relevant Statutory Context: The Education Act 1989

The New Zealand Teachers Council (NZTC) was established by virtue of s 139AC of the Education Act 1989. It describes itself as “the professional and regulatory body for teachers in New Zealand”.66 Its purpose is “to provide professional leadership in teaching and to contribute to safe, high quality

63 Lowe Walker Paeroa Ltd v Bennett [1998] 2 ERNZ 558 (CA) at 582.

64 Mazengarbs Employment Law, above n 62 at [ER A189.3].

65 Te Aupouri Ngati Kahu Te Rawara Trust v Oien EmC Auckland AEC24/94; A6/94, 19 May


66 At <>.

teaching and learning environments for children and other learners.”67 Its functions include exercising disciplinary functions in relation to teacher misconduct.68

If a Board of Trustees dismisses a teacher for serious misconduct, the Board is required to send a report of the dismissal to the NZTC.69 The report must contain the reasons for the dismissal. Every teacher who is convicted of an offence punishable by a minimum of three months imprisonment must report the conviction to the NZTC within seven days of the conviction.70

Failure to report a conviction within the specified period is an offence warranting disciplinary investigation.71 In addition, the Registrar of every court is required to report any similar conviction to the NZTC of any person the Registrar believes to be or to have been a teacher unless the court expressly orders otherwise.72

If a teacher is convicted of a criminal offence, then the teacher and the court registrar is required to notify the NZTC. The NZTC will refer the matter to the Complaints Assessment Committee (CAC). The CAC must refer the matter to the Disciplinary Tribunal (DT) if the CAC considers that the misconduct may warrant disciplinary action by the DT.73 If this happens, the DT will conduct a hearing and may make any of the orders provided for in s 139AW. If the DT orders deregistration, it must take all reasonable steps to notify employers of the teacher’s deregistration.74 If this happens, the teacher’s employer would not be permitted to continue to employ the teacher.75

These provisions show that if a teacher is convicted of a criminal offence, it is likely that their registration will be cancelled and that they will be dismissed from their employment. If a criminal trial is followed by a DT hearing or an employer’s investigation, no issues arise in relation to a stay/injunction because there is no possibility of unfairness to the convicted person. In other words, there is no possibility that either of the two civil processes could increase the likelihood of conviction. However, the question of whether a stay should be granted is a live issue if the employer’s investigation or the DT hearing precedes a criminal trial. In this situation, case law will be considered to determine the parameters for granting a stay. First, I will consider case law in the civil jurisdiction. Then, cases decided by the employment institutions will be considered.

67 Ibid.

68 Education Act 1989, s 139AE(h).

69 Education Act 1989, s 139AK.

70 Education Act, s 139AP.

71 Ibid.

72 Education Act 1989, s 139AP (3).

73 Education Act 1989, s 139AV (3).

74 Education Act 1989, s 129(5).

75 Education Act 1989, s 120B.

III. Case Law Concerning an Application for a Stay/ Injunction

A. Cases in the Civil Jurisdiction

McMahon v Gould76 has influenced New Zealand case law. In that case, Wootten J adopted the following guidelines in relation to whether a court should exercise its inherent discretion to grant a stay of civil proceedings where criminal proceedings were pending:77

(a) Prima facie a plaintiff is entitled to have his action tried in the of the court;

(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;

(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff ’s ordinary rights should be interfered with;

(d) Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e) The court’s task is one of “the balancing of justice between the parties”, taking account of all relevant factors;

(f ) Each case must be judged on its own merits; and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;

(g) One factor to take into what is sometimes referred to as an accused’s “right of silence”, and the reasons why that a right of a defendant in a criminal proceeding...;

(h) However, the so-called “right of silence” does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant ...having to disclose what his defence is likely to be in the criminal proceeding;

(i) The Court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;

(j) In this regard factors which may be relevant include:

(i) the possibility of publicity that might reach and influence jurors; (ii) the proximity of the criminal hearing;

(iii) the possibility of miscarriage of justice e.g. by disclosure of a defence enabling fabrication of evidence by prosecution witnesses, or interference with defence witnesses;

76 McMahon v Gould, above n 5.

77 Ibid.

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently;

(v) whether the defendant has already disclosed his defence to the allegations; and

(vi) the conduct of the defendant;

(k) The effect on the plaintiff must also be weighed and measured against the effect on the defendant...; and

(l) In an appropriate case, the proceedings may be allowed to proceed to a certain stage.

Wootten J distinguished between tactical advantages conferred on a defendant by the right of silence (which a civil court need not preserve) and avoiding unjust prejudice in the criminal proceeding.78 In the case itself, Wootten J refused to grant a stay of proceedings because the defendant could not discharge the burden of proving that to proceed with the civil proceeding would result in a real possibility of injustice.

In Wells v Lewis79, Anderson J refused to grant an application for a stay of civil proceedings. The defendant had been charged with intent to defraud by false pretence. Anderson J considered relevant the fact that the defendants had elected summary trial, that the elements requiring proof in the civil hearing differed from the elements in the criminal proceeding, that the standard of proof differed and that if the civil hearing proceeded, there was no real risk of injustice (although the defendant might forfeit the advantage of surprise).

In ADT Securitas v Geange,80 Master Williams QC refused to grant an application for stay. The Master referred to s 405 of the Crimes Act 1961 which provides that there is no statutory bar to civil proceedings simply because the relevant conduct amounts to a criminal offence. He cited McMahon81 in detail. Finally, the judge observed that there was no risk of injustice if the civil hearing proceeded because “truth cannot spawn injustice.”82 Therefore, the loss of perceived tactical advantages was not sufficient to justify a stay.

In General Distributors Ltd v Hilliard,83 Heath J refused to grant an application for stay. His Honour cited s 405 and McMahon.84 Heath J viewed ss 60 and 63 of the EA as relevant. According to his Honour, the real question is whether the fair trial rights including the right to silence and the “purported” right not to disclose a defence outweighed the presumptive right of the plaintiff to proceed with the civil hearing. Since this case concerned the loss of tactical advantage, as opposed to the real risk of injustice, there was insufficient justification for a stay.85

78 Ibid, at 103.

79 Wells v Lewis HC Hamilton CP 55/90, 18 December 1990.

80 ADT Securitas v Geange HC New Plymouth, CP 17/92, 3 August 1992.

81 McMahon v Gould, above n 5.

82 Ibid.

83 General Distributors Ltd v Hilliard HC Auckland CIV 2008-404-1057, 16 July 2008.

84 McMahon v Gould, above n 5.

85 General Distributors Ltd v Hilliard, above n 83, at [41].

Most recently, in Nathans Finance Limited (in Receivership) v Doolan86, Doogue AJ refused to grant an application for stay. His Honour cited McMahon87 and General Distributors88 in support of the proposition that loss of tactical advantages is insufficient justification for granting an application for a stay of proceedings. In the factual context of the case, Doogue AJ considered that there was little likelihood that the defendants would risk losing tactical advantage. Even if the likelihood eventuated, his Honour considered that providing the plaintiff with an opportunity to disclose previously unknown information to the police did not amount to an injustice. In terms of the privilege against self-incrimination, Doogue AJ held that any risk that the defendants might incriminate themselves was sufficiently covered by s 63(3) of the Evidence Act 2006.89

B. Discusssion

These four cases suggest that an application for a stay is only likely to succeed in the most exceptional of cases. In fact, there has hardly been a successful application for a stay in the civil (non-employment) jurisdiction for the last 20 years.90 The case law confirms that an applicant is not entitled to a stay as of right. Instead, it is a matter of discretion for the court. An applicant is under a heavy onus to show that it is in the interests of justice for a stay to be granted. The right of silence is narrowly construed by all judges and the statutory privilege against self-incrimination does not appear to increase the likelihood that a stay will be granted. Pointing to loss of tactical advantage that result from a defendant having to disclose his or her defence appears to be insufficient to amount to injustice. Any concerns that publicity from a civil proceeding will affect potential jurors are likely to be met by court orders restricting publication.91

The case law reflects a policy decision that allows for civil proceedings to influence proceedings in criminal cases provided that a defendant receives a fair trial. This amounts to a judgment that requiring a defendant to disclose his or her defence prior to trial is legitimate. This approach appears to be at odds with the Harvey’s conception of the right of silence which entitles a defendant to put the prosecution to proof. It is also inconsistent with s

32 of the EA that prevents a fact finder from drawing an adverse inference based on a defendant’s failure to disclose his or her defence. This provision has the effect of legitimising the defence tactic of putting the prosecution to proof. However, the common law regarding application for a stay of civil

86 Nathans Finance Limited (In Receivership) v Doolan HC Auckland CIV-2010-404-2360, 15

October 2010.

87 McMahon v Gould, above n 5.

88 General Distributors Ltd v Hilliard, above n 83.

89 Ibid, at [49] – [50].

90 For an example of a successful application for a stay, see Wood v Director-General of Social Welfare HC Christchurch, M659/91, 3 December 1991 where Tipping J allowed an appeal against a refusal of the social Security Appeal Authority to adjourn civil proceedings even though both parties consented to an adjournment.

91 See for example General Distributors Ltd v Hilliard, above n 83, at [42].

proceedings appears to legitimise requiring a defendant to disclose his or her defence prior to trial. Consequently, the common law position appears to be inconsistent with the effect of s 32.

However, s 32 is likely to be modified by the Criminal Procedure (Reform and Modernisation) Bill 2010. Clause 106 of that Bill enables a fact finder to draw an adverse inference from a defendant’s failure to notify the prosecution of the issues in dispute.92 If the Bill is passed into law in its present form, then defendants will be under a positive obligation to disclose their defence. If this happens, the “right of silence” has been limited. It is questionable whether such a limitation is demonstrably justified in a free and democratic society.93

In the present environment, where a defendant need not say anything, the approach of the civil courts appears harsh.

The most recent New Zealand decisions approve and adopt the approach of Wootten J in McMahon. That case was decided in the state of New South Wales and has been adopted by the Supreme Court of Victoria.94 The question of whether McMahon is consistent with the New Zealand statutory context has been answered in the affirmative. New Zealand case law has emphasised that a plaintiff seeking to enforce his or her legal rights in civil courts should only be prevented from doing so on the rarest of occasions. This may be described as the “truth cannot spawn injustice” approach.

C. Case Law from the Employment Institutions

In Mann v Alpinewear (NZ) Limited,95 the Court considered whether the Employment Tribunal (the Tribunal) should refuse to proceed with a personal grievance hearing where the plaintiff was facing criminal charges arising from the same set of facts. Judge Travis held that whether the Tribunal should proceed was a matter for the Tribunal’s “wide and largely unfettered”96 discretion. The Court suggested that the parties should make submissions to the Tribunal on the “current factual position”97 and with regard to the factors traversed in this judgment. These factors included the Magna Carta98 (“To no one will We sell, to no one will We deny or delay, right or justice”) and the decisions of McMahon, ADT Securitas and Wells. Significantly, the Court stated that the fact that the Tribunal and the criminal court might reach different findings did not automatically require the Tribunal to delay the employment hearing.

92 Clause 106 of the Bill was not passed into law.

93 New Zealand Bill of Rights Act 1990, s 5. Whether it is demonstrably justified is beyond the scope of this paper. The question would require detailed consideration of whether the expected saving in state resources is proportionate to the erosion of a fundamental human right.

94 Philippine Airlines v Goldair (Aust) Pty Ltd [1990] VicRp 34; [1990] VR 385 (VSC).

95 Mann v Alpinewear (NZ) Limited [1996] 1 ERNZ 248 (EmC).

96 Ibid.

97 Ibid.

98 King John, Magna Carta (1215).

In Russell v Wanganui City College,99 the Court issued an injunction to restrain a Board of Trustees from carrying out a disciplinary enquiry in circumstances where the subject matter of the disciplinary investigation was also the subject matter of a criminal complaint although no charges had been laid. The plaintiff was one of the College’s two deputy principals. The relevant conduct concerned the allegedly dishonest filing of returns to the Ministry of Education regarding the size of the roll.

The Court granted an injunction based on the Court’s view that s

23(4) of NZBOR A (which provides every person who has been arrested or detained shall have the right to refrain from making any statement and to be informed of that right) should not be interpreted narrowly (or literally), the considerations listed by Wootten J in McMahon and considerations of common sense and equity.

However, in this case, no criminal charges had been laid and the applicant had not been arrested or detained. This scenario engaged the second of Lord Mustill’s immunities. Consequently, in strict legal terms, s 23(4) was not engaged.100 Instead, the Court ought to have considered whether the privilege

against self-incrimination applied.

In any event, the Court decided as a matter of policy, that the employment institutions should not increase the likelihood of conviction of a party to employment proceedings by allowing the prosecution to obtain “ammunition that otherwise would not be available to it”.101 This approach is consistent with earlier case law:102

There has been a certain amount of confusion between the jurisdiction of a criminal Court and the jurisdiction of the Arbitration Court sitting in dismissal cases where the employee’s conduct is in issue. It is no business of the Arbitration Court to say whether or not a crime has been committed and it is no business of the criminal Court to say whether or not a dismissal is justified. (emphasis added)

This approach is one of non-interference which pays no regard to the distinction between loss of tactical advantages and the real risk that injustice will result. Therefore, it is suggested that Russell amounts to a partial adoption of the McMahon approach.103

Sotheran v Ansett New Zealand Limited104concerned the crash of an Ansett New Zealand DHC-8 aircraft 16 kilometres east of Palmerston North. The crash resulted in four fatalities. The Captain, Garry Sotheran, (Captain Sotheran) and the First Officer, Barry Brown (First Officer Brown),

99 Russell v Wanganui City College, above n 11. The Chief Judge who decided Russell is the writer’s father.

100 See R v Barlow, above n 11 and A Butler and P Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis NZ Limited, Wellington, 2005) at 665 where the authors prefer the minority approach in Barlow that s 23(4) is only operative where a person has been arrested or detained.

101 Ibid.

102 Wellington Road Transport etc ‘UM/V v Fletcher Construction Company Ltd (Hepi’s case)

[1983] ACJ 653 at 661. This policy will be discussed in more detail below.

103 Note that Couch describes later court authority as inconsistent with the McMahon principle.

The postscript to this case is that the Board abandoned its disciplinary investigation and no criminal charges were laid.

104 Sotheran v Ansett New Zealand Limited Employment Court Christchurch CEC 5/99, 1 April


faced a disciplinary investigation by Ansett New Zealand Limited (Ansett). In addition, the Police intended to lay criminal charges against Captain Sotheran solely. Captain Sotheran and First Officer Brown applied for orders restraining Ansett from conducting the disciplinary investigation or dismissing the plaintiffs until the criminal proceedings were concluded.

The Court granted the orders sought. Judge Palmer fully traversed the relevant authorities including Russell, McMahon, Mann, ADT Securitas and Wells. His Honour stressed the significance of the factors identified by Wootten J in (i) and (j). This case appears to be an extension of the approach in Russell because there was no possibility of criminal charges being laid against First Officer Brown (although at the time of hearing, it appeared likely that charges against Captain Sotheran would be laid).

The Court considered the extension was justified because if the disciplinary investigation proceeded against First Officer Brown, then he would have an incentive to blame Captain Sotheran for the accident. If this happened, the Crown could call First Officer Brown as a witness and place “particular reliance”105 on this evidence. Accordingly, the plaintiffs had made

out an arguable case and both the balance of convenience and the interests of

justice favoured issuing the orders.

This case reinforces the approach of the Court in refusing to distinguish between a defendant’s loss of tactical advantage and considering whether there is a real risk of injustice. In this case, there was a real possibility that the evidence of First Officer Brown would make the conviction of Captain Sotheran in a criminal proceeding more likely. This was sufficient to justify the granting of the orders. Similarly, Captain Sotheran had not been arrested or detained. Thus, the plaintiffs were seeking to rely on the second of Lord Mustill’s immunities. Therefore, the question was whether the Captain and First Officer Brown were able to claim the privilege against self-incrimination.

Under the EA, neither would be entitled to claim the privilege because Ansett was not carrying out a law enforcement function, the company was not acting under a statutory duty or power and the disciplinary investigation was not a legal proceeding (although it might lead to one).106 In any event,

First Officer Brown could not claim the privilege in circumstances where

there was no prospect of him incriminating himself.107 However, the employment institutions would be able to rely on their equity and good conscience jurisdiction. Couch criticises this decision as being “wrong in principle” and inconsistent with the McMahon principles.108 Certainly, the decision represents an extension of the Court’s approach in Russell.

In A Ltd v B,109Z, the managing director of A Ltd, faced allegations of sexual assault from Ms D. Ms B alleged that Z had engaged in conduct which amounted to sexual harassment. Both Ms B and Ms D brought personal grievance claims against A Ltd. Ms D consented to an adjournment of her

105 Ibid.

106 Evidence Act 2006, s 60.

107 Evidence Act 2006, s 60(4)(b).

108 Couch, above n 43, at 100.

109 A Ltd v B [1999] 1 ERNZ 613 (EmC).

personal grievance whereas Ms B opposed adjournment. Z sought a stay in the Tribunal but was unsuccessful. Z succeeded on appeal to the Court that overturned the decision of the Tribunal.

The Court considered the McMahon guidelines and based its decision on:

(1) the paramount importance of the right of silence and the right to a fair trial;

(2) even though A Ltd was a limited liability company, the allegations against Z were central to Ms B’s personal grievance claim:

(3) if Z was cross-examined at the Tribunal hearing, he would lose his right to silence and there was a risk of prejudice to the defence; and

(4) related to this, if Z disclosed his defence, his right to a fair trial could be prejudiced because the complainant could be more prepared to respond to challenges of her veracity.

There are two interesting aspects to this judgment. First, Judge Travis characterised Z’s loss of tactical advantage as compromising his right to a fair trial. This approach is inconsistent with Wootten J’s view that loss of tactical advantage does not equate with an unfair trial. Judge Travis appears to place greater weight on s 25(a) of NZBOR A (the right to a fair and public hearing by an independent and impartial court). Interestingly, the significance of this right was not discussed by the Court in either Wells or ADT Securitas. It poses a question of whether the McMahon approach is a reasonable limitation prescribed by law and demonstrably justified in a free and democratic society. Unfortunately, this point has not been discussed. Given that s 25 identifies the minimum standards of criminal procedure, it is understandable that the Court did not want to limit this right where there were other options available. Since an injunction is ordered in accordance with the equity and good conscience jurisdiction, it would be odd to decline to exercise the jurisdiction in a way that undermines fundamental human rights in criminal proceedings.

Secondly, Z was not a party to the Tribunal hearing – A Ltd was. Consequently, A Ltd was applying for an injunction because of pending criminal proceedings to which A Ltd was not a party. The principle of separate corporate personality would normally operate to prevent A Ltd from obtaining an injunction in respect of one of its employees. Z would not be able to obtain an injunction because he was not a party to the employment proceedings. If he was, then he would be personally liable in relation to the personal grievance claims of Ms B and Ms D. But the equity and good conscience jurisdiction also allows employment institutions to pierce the corporate veil.110 For this reason, the decision was within the Court’s equity

and good conscience jurisdiction.

110 New Zealand Seamen’s IUOW v Gearbulk Shipping (New Zealand) Ltd [1990] 1 NZILR 688 (LC).

In Wackrow v Fonterra Co-operative Group Limited,111 the plaintiff was previously employed by the Kiwi Co-operative Dairy Group (Kiwi). In 2001, two investigations were conducted into allegations that milk powder had been sold to an Australian company and exported without a licence. One investigation found that there was no evidence of improper personal gain. Subsequently, the defendant employed the plaintiff. However, the Serious Fraud Office conducted its own investigation and, in 2004, charged the plaintiff with conspiracy to defraud. At this point, the defendant suspended the plaintiff.

The plaintiff applied for orders restraining the defendant employer from conducting a disciplinary enquiry until the criminal proceedings had been concluded. The Court reached a novel solution: the plaintiff was required to attend the disciplinary interview but was not required to answer three questions (or questions of a similar nature) that related to the background or the substance of the fraud charges.112 The Court explained that this

solution would not jeopardise the plaintiff ’s fair trial rights while allowing

his employer to continue its investigation within those boundaries.113

The Court did not accept a submission that Sotheran v Russell failed to correctly apply the McMahon guidelines.114 Presumably, the submission relied on the failure of the Court in those cases to distinguish between loss of a tactical advantage and prejudice to fair trial rights. In this regard, the Court has applied the guidelines in McMahon with less rigour than the High Court.

However, the Court placed greater weight on the right of the employer to conduct its investigation. This resulted in the employee being required to fulfil his obligation of good faith to his employer (i.e. the obligation to be responsive and communicative) to the fullest extent possible. The fullest extent of this obligation did not include requiring the plaintiff to prejudice his right to a fair trial. This is a value judgment that the duty of good faith in employment law is not a limitation on any of the minimum standards of criminal procedure.115 The value judgment continues the established policy

of employment institutions of refusing to allow disciplinary investigations to

influence the outcome of criminal prosecutions, but modifies it by allowing an employer to continue its investigation. In this respect, Wackrow is more finely nuanced than Russell or Sotheran. Couch describes the approach in Wackrow as “distinctly preferable” to the all or nothing approach relied on by earlier cases.116 Wackrow represents a modification, as opposed to a reversal, of previous Court authority.

111 Wackrow v Fonterra Co-operative Group Limited [2004] NZEmpC 50; [2004] 1 ERNZ 350 (EmC).

112 Ibid, at [87].

113 Ibid, at [85] – [86].

114 Ibid, at [61] – [62]. Note that the submission is consistent with the views expressed by


115 New Zealand Bill of Rights Act 1990, s 25.

116 T Couch “Double Jeopardy” in Employment Law (New Zealand Law Society, Wellington,

2006) 193. Interestingly, the “powdergate six” including Mr Wackrow pleaded guilty at trial

In Singh v The Chief Executive Officer of the Department of Labour,117 the plaintiff worked as an immigration officer and faced four charges of theft in the course of his work. The plaintiff sought an injunction preventing the Department of Labour (the Department) from carrying out its disciplinary investigation. The Authority refused to issue an injunction but restrained the Department from asking the plaintiff any questions which related to the substance of the criminal charges faced by the plaintiff.118 In adopting this approach, the Authority appeared to be following the approach taken by the Court in Wackrow.

However, the Court allowed the plaintiff ’s appeal and issued an injunction preventing the Department from carrying out its enquiry until the criminal proceedings were concluded. The Court considered that if the Department continued with its investigation, requiring the plaintiff to answer the questions the Department proposed to ask would give rise to a “serious possibility” of injustice in that the plaintiff ’s right to silence would be compromised: he might be forced to disclose his defence prior to trial; and he encountered the risk that he may incriminate himself.119 Further, the Department had tainted its investigation by drawing adverse inferences from the plaintiff ’s silence in response to questions the Department had previously asked. Consequently, an injunction was an appropriate remedy.120

It is significant that this case was decided by the same judge who decided Wackrow. Judge Shaw appears to have resiled from her initial position that an employer could continue with a disciplinary investigation provided that an employee was not required to answer questions that related directly or indirectly to the substance of a criminal charge. In this case, both the Department and the Authority relied on Wackrow to their detriment. The Department asked questions which the Court held related to the substance of the criminal charges. Further, the Department based its conclusion that the plaintiff had engaged in serious misconduct partly on his failure to answer the questions. The Authority made a similar error in relation to the questions and compounded this error by considering whether damages would be an alternative remedy to an injunction in the wrong order and in the wrong context.121

In Singh, the Court appears to have been more careful that its processes

should not be used to increase the likelihood of conviction of a party to employment proceedings. Singh underlines the Court’s rejection of the distinction between the loss of tactical advantages and substantive injustice. However, the extent to which the Court was influenced by the fact that the employer was a government department and the manner in which the Department had carried out is investigation remains unclear. Consequently, Singh may represent a revision of the Wackrow principle or it may turn on its

117 Singh v The Chief Executive Officer of the Department of Labour [2005] NZEmpC 68; [2005] ERNZ 569; (2005) 7

NZELC 98,006 (EmC).

118 Singh v The Chief Executive Officer of the Department of Labour ER A Auckland, A A17/05, 21

January 2005.

119 Singh v The Chief Executive Officer of the Department of Labour, above n 117, at [59].

120 Ibid, at [69].

121 Ibid, at [66].

own facts. This ambiguity is unlikely to be resolved until the next application for an injunction is considered by the Court. Couch considers that the Judge “cast the net too wide” and the decision should be treated with caution.122

The Authority has decided two cases since Singh. In Ms X v Bay of Plenty District Health Board,123 the Authority issued an injunction preventing Ms X from seeking to have her sick leave reinstated because the Bay of Plenty District Health Board (the BPDHB) faced criminal charges relating to its dealings with Ms X pursuant to s 6 of the Health & Safety in Employment Act 1992. The Authority issued an injunction because it could not separate the question of causation from its investigation of whether Ms X was entitled to continue to be paid sick leave. Causation was directly related to the criminal charges. Consequently, the Authority granted a stay/adjournment.124

Most recently, the Authority issued an injunction to prevent the Chief of the New Zealand Defence Force from continuing its investigation into the conduct of an employee and from carrying out any disciplinary investigation until related criminal proceedings were concluded.125 The Authority based its decision on Russell and the statement made by the Court that s 23(4) of NZBOR A should not be narrowly construed.126 The Authority considered that there was a risk that potential jurors could be influenced if publicity of the disciplinary investigation leaked out and that the prosecution could require the NZDF to disclose any incriminating material.127 Interestingly, the Authority rejected an argument that the duty of good faith required the employee to participate in the disciplinary investigation because s 4(1A) (b) of the ER A was never intended to override s 23(4) of NZBOR A or the common law right to silence.

It is suggested that this approach is wrong in law. The question ought to have been whether s 4(1A)(b) could be interpreted in a way that is consistent with s 23(4).128 Case law has consistently demonstrated that the employment institutions do not permit their processes to increase the likelihood of conviction. Accordingly, the institutions are unlikely to interpret s 4(1A)(b) in a way that requires a party to disclose his or her defence in a criminal trial or otherwise arm a prosecution with ammunition that they otherwise would not have had. The employment institutions have demonstrated a willingness to interpret s 4(1A)(b) so that it is consistent with s 23(4). Parties are still required to be “responsive and communicative” but not until related criminal proceedings have been resolved. This is different from failing to give effect to the statutory duty of good faith. It is a timing issue. In summary, s 4(1A) (b) does not override s 23(4) but s 23(4) influences how the employment institutions interpret the statutory duty of good faith.

122 Couch, above n 116.

123 Ms X v Bay of Plenty District Health Board ER A, A A 372/07, 29 November 2007.

124 Ibid, at [17]. The Authority did not address the question of whether the BPDHB could claim the right to silence or the privilege against self-incrimination given that it is not a natural person. Arguably, even if it could not, the Authority could invoke the equity and good conscience jurisdiction and grant a stay regardless.

125 Sharpe v The Chief Executive of the New Zealand Defence, above n 50.

126 Ibid, at [20].

127 Ibid, at [29].

IV. Discussion of the Divergence in the Case Law

Between an Application for a Stay in the High Court and an Application for an Injunction in the Employment Institutions

Both the employment institutions and the High Court have cited McMahon as the leading authority on whether a stay/injunction should be granted/ordered. Given that McMahon is Australian authority and was decided prior to the enactment of NZBOR A, the ER A and the EA, both jurisdictions have had to determine the extent to which the McMahon approach should be modified so as to be consistent with the current New Zealand statutory context.129 The High Court has consistently refused to grant a stay of proceedings. Its approach has been described as “reasonably robust”.130 The Court consistently makes a distinction between requiring a defendant to disclose his or her defence and a real risk of injustice. The Court appears not to be concerned about influencing the outcome of criminal proceedings provided that injustice does not result. On the other hand, the employment institutions appear more willing to order injunctions wherever there is a risk that employment proceedings may influence related criminal proceedings.

Spackman and Belton have observed:131

The right not to self-incriminate is an important right. So is an employer’s right to investigate allegations of misconduct. The employment institutions are faced with difficult decisions when these rights intersect and compete with each other, and in each case which determines these issues, that complex balancing exercise is apparent.

However, this comment does not explain the fundamentally different approach adopted by the employment institutions. One relevant factor could be that addressing the inherent inequality of bargaining power between employers and employees is a cornerstone of employment law and has been recognised by Parliament.132 It is arguable that this inequality has influenced the employment institutions to restrict the application of the McMahon principle whereas no such modification is necessary in relation to civil proceedings. This argument has little weight in the light of A Ltd and X where injunctions were ordered in response to applications from employers.

Another factor could be that the High Court is exercising its inherent jurisdiction. The inherent jurisdiction is relatively difficult to invoke.133 In contrast, the employment institutions have no inherent jurisdiction. Instead, the Court and the Authority exercise statutory powers. These statutory powers include the equity and good faith jurisdiction. The equity and good

129 The writer acknowledges that the current statutory context is changing and further change is predicted. I refer to recent changes to the ER A in relation to trial provisions and the test of justification and proposed changes contained in the Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1) relating to the drawing of adverse inferences if a defendant fails to identify issues at trial.

130 Invensys PLC v Load Logic Limited HC Christchurch, CP 73/01, 26 March 2002 at [22].

131 K Spackman and N Belton “A Right to Remain Silent?” [2008] ELB 71.

132 Employment Relations Act 2000, s 3 (a)(ii).

133 The most common example is punishing people for contempt. This happens but it is a power that is used as a last resort.

faith jurisdiction empowers the employment institutions to focus on the substance of claims, as opposed to being bound by formal requirements. It is suggested that the employment institutions have greater flexibility in determining whether a stay/injunction is appropriate.

Finally, the judges of the High Court appear to have greater confidence that the criminal court will prevent injustice by refusing to admit prejudicial evidence. This confidence justifies a lighter approach. This is understandable given that High Court judges hear criminal cases as well as civil cases. Generally, Employment Court judges have no role to play in criminal proceedings134 and Authority members have no role in criminal proceedings. This much more limited role has arguably given rise to greater concerns that requiring parties to disclose information in disciplinary investigations could influence the status quo in relation to outcomes of criminal proceedings. Both Sotheran and Russell are illustrations of the Court refusing to influence the outcome of criminal proceedings in ways that produced beneficial results.135

Whatever the reason, the divergence in the case law remains. This will likely continue until an application for an injunction comes before the Court of Appeal. Recently, that Court observed that “the presumption of innocence is not relevant in the employment context”.136 Admittedly, this comment was obiter but the Court did not expressly endorse the Russell line of authority. The potential exists for a revision of the Russell approach and the current policy of non-interference.

It is suggested that the different approach adopted by the employment institutions is a natural incidence of having specialist institutions dealing with employment disputes. There is a greater harmony with relevant provisions of NZBOR A in the approach adopted by these institutions in that their approach pays appropriate regard to the primacy of the criminal law. Perhaps fewer injunctions would be granted if the Employment Court was amalgamated into the general court system. But the cost of such a radical departure from the status quo would be that non-specialised judges would be determining cases in a highly specialised area of the law. It is suggested that the costs outweigh any potential benefit.

V. The Implications for Boards of Trustees

If a Board of Trustees suspects that a teacher has engaged in misconduct, the Board should conduct its own investigation. If the misconduct has the potential to amount to dishonesty offences, sexual offences or assault, then this should be reported to the police and to the NZTC. The question is when.

134 Note that Judge Perkins had a temporary warrant to sit as a judge of the Employment Court for 12 months and now sits as a District Court judge. Judge Couch sits in both the Employment Court and the District Court.

135 In Sotheran, Captain Sotheran was acquitted of manslaughter charges by a jury. In Russell, the Board subsequently abandoned its disciplinary investigation and no criminal charges were laid.

136 Commissioner of Police v Hawkins [2008] NZCA 164 at [43].

Unless an employee is caught “in flagrante delicto”,137 the employer will be required to carry out an investigation. The investigation will need to comply with the requirements of procedural fairness.138 At the very least, the Board will need to provide notice to the teacher of alleged misconduct and the likely consequences if the allegations are found to be true, provide the teacher with a real opportunity to deny the allegations or explain his or her conduct and consider the teacher’s explanation in an unbiased manner, that is, free from any pre-determination or influence from irrelevant considerations.139 Patten suggests that an investigation must be fair and transparent and conform to the principles of natural justice.140

In conducting the investigation, it is likely that the Board will gather information which would be very useful to the prosecution. According to Rowe, the Board would have three options:

(1) Conduct the employment investigation prior to any referral to the police (although it would be prudent to advise the employee that a complaint to the police may follow).

(2) Inform the Police that a complaint will follow and obtain their agreement to delay the criminal investigation until after the employment investigation has concluded.

(3) Obtain the teacher’s consent to conducting the employment investigation prior to any complaint being made to the police.141

Unfortunately for Boards, the process may be difficult to control. For example, in Russell , it was the Ministry of Education as opposed to the Board that laid the criminal complaint.142 It would be difficult for a Board to maintain that any employment investigation would be kept confidential because the Police or other prosecuting authority could require disclosure of any relevant information.143 Failing to proceed with an investigation could expose a Board to prosecution pursuant to either s 68 of the Human Rights Act 1993 or ss 6 and 15 of the Health and Safety in Employment Act 1992. Inaction is not an option for Boards of Trustees especially where there are allegations of assault or of a sexual nature.144

For these reasons, a Board should proceed with a disciplinary investigation. A teacher may not claim the right to silence and may co-operate regardless. If a teacher refuses to answer questions, a Board may have sufficient information

137 Finsec v AMP Society [1992] 1 ERNZ 280 (EmC).

138 See the Employment Relations Act 2000, s 103A where the test of justification is now “what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.” See J Hughes “Interpreting the new justification test — Part

1” [2011] ELB 13 and J Hughes “Interpreting the new justification test — Part 2” [2011] ELB 25. Note that core process elements have been codified.

139 NZ Food Processing etc IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35 (LC).

140 D Patten “An Investigative Process” [2006] ELB 48.

141 S Rowe “The Thin Blue Line: Employee Crime goes High-tech” [2006] ELB 14.

142 Russell v Wanganui City College, above n 11.

143 It is likely that this would fall within one of the exceptions to Principle 11 in the Privacy Act

1993, s 6.

144 In practice, the author understands that Boards of trustees conduct most disciplinary investigations within 7-10 days. See for example National Administration Guideline 5 at

on which to base its decision.145 A Board may be able to proceed unless a teacher applies for an injunction. If a teacher applies for an injunction, he or she may not be successful. This could be so if the Board prepares a list of questions and at least some of them are not related to the substance of a potential criminal charge.146 If a teacher applies for, and is granted, an injunction, then the Board has a problem.

The problem is that, depending on the terms of the injunction, the Board may have to pay the teacher until the criminal proceedings have been concluded.147 However, there could be a way around this. A Board could inform the NZTC that they suspect a teacher has engaged in serious misconduct. If the matter is referred to the Disciplinary Tribunal (the DT), then the DT can compel a witness to appear and answer any questions truthfully and fully.148 Failure to do so amounts to an offence subject to a fine. If the DT finds that there has been serious misconduct and orders deregistration, then the Board would not be permitted to continue to employ the teacher.149 In this situation, there would be no need for a Board to continue its employment investigation.

It seems incongruous that an injunction could prevent a Board from continuing with an investigation or taking disciplinary action against a teacher when the DT can hold a hearing to determine whether a teacher’s registration should be cancelled. There is a related concern that a teacher could face double jeopardy in relation to the same conduct. The answer seems to be that the criminal law and the DT serve different purposes: the purpose of the criminal law is to punish the guilty whereas the purpose of the NZTC is to ensure that professional standards in the teaching profession are maintained.150

It should be emphasised that the criminal inquiry and the misconduct inquiry are different in significant respects. For example, the standard of proof in the criminal context is beyond reasonable doubt whereas the standard in the disciplinary inquiry is the civil standard flexibly applied. In the criminal hearing, the elements of the offence must be proved whereas in the disciplinary hearing, the DT must be satisfied that serious misconduct has occurred. A criminal defendant faces criminal sanctions whereas a teacher involved in disciplinary proceedings faces censure or possible deregistration.

This is consistent with the majority decision in Z v Dental Complaints Assessment Committee where the majority considered that a professional disciplinary tribunal concerns itself with “wider aspects of a practitioner’s conduct than the strict regime of a criminal trial would allow.”151 Further, the

145 See for example Harris and Shepherd v Courage (Eastern) Ltd [1982] IRLR 509 (CA) per

Slynn J.

146 See for example Wackrow v Fonterra Co-operative Group Ltd, above n 111.

147 In general, teacher salaries are paid by the Ministry of Education. Therefore, funding issues raised by paying a teacher while he or she is suspended are not necessarily critical. Even so, it is likely that Boards would wish to resolve disciplinary investigations as quickly as possible.

148 Education Act 1989, ss 139AY and 139AZ.

149 Education Act 1989, s 120B.

150 See Harder v Director of Land Transport Safety (1998) 5 HRNZ 343 where the Court held that the purpose of disqualification of licences for taxi drivers was protection of the public.

151 Z v Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1 at 47.

majority held that the standard of proof in professional disciplinary hearings is the civil standard flexibly applied.152 Moreover, in other professions, negligence may be sufficient to constitute professional misconduct.153It follows that DT hearings serve different purposes from the criminal law. This makes referring a complaint about a teacher’s conduct to the DT a realistic alternative for an injuncted Board.

Overall, there is a range of possible outcomes. If a Board has reason to suspect serious misconduct, it should conduct an investigation in a transparent and fair manner. In most cases, teachers could be expected to participate fully in the investigation. Even if teachers refuse to participate, a Board could still take disciplinary action provided that there is sufficient evidence. A Board will only be prevented from doing so if there is a real risk that simultaneous criminal proceedings will take place and a teacher obtains an injunction preventing the Board from proceeding. If this happens, a Board can either wait to complete its investigation until criminal proceedings are resolved or it could make a complaint to the NZTC which could be referred to the DT by the Complaints Assessment Committee. If the DT finds that there has been serious misconduct, then deregistration is likely.154 If a teacher

is deregistered, a Board will not be able to continue to employ the teacher

and his or her employment will be terminated.

VI. Implications for Teachers

If an allegation is made that a teacher has engaged in serious misconduct that could give rise to concurrent criminal liability, then a teacher should receive legal advice. The criminal sanctions are likely to be much more severe than any sanctions that could be imposed by a Board or the NZTC. For example, the most severe sanction available to a Board is termination of employment. The most severe sanction the NZTC can impose is deregistration. By contrast, the maximum penalty for theft is seven years imprisonment.155 For assault, the maximum penalty is imprisonment for twelve months.156 For assault on a child or if a male assaults a female, this penalty is doubled.157 For sexual conduct with a young person under 16, the maximum penalty is 10 years imprisonment.158 The maximum penalty for sexual conduct with a child under 12 is 14 years imprisonment159 and the maximum penalty for indecent assault is seven years imprisonment.160

Finally the maximum penalty for an employee’s breach of s 19 of the Health

152 Ibid, at 44-45. But note Elias CJ’s well-reasoned dissent and criticism of the decision in the article by A Beck “Professional Disarray” [2008] NZLJ 285 where the writer acknowledged that although the double jeopardy argument can no longer be used to prevent disciplinary hearings from taking place, the concerns underlying the argument are real.

153 Cullen v Preliminary Proceedings Committee [2005] 3 NZLR 801 (HC).

154 See Scully v Complaints Assessment Committee of the New Zealand Teachers Council [2010] DCR 159.

155 Crimes Act 1961, s 223.

156 Crimes Act 1961, s 196.

157 Crimes Act 1961, s 194.

158 Crimes act 1961, s 134.

159 Crimes Act 1961, s 132.

and Safety in Employment Act 1992, if a charge is laid under s 49, is either a fine of $500,000 or imprisonment for two years or both.161 Under s 50, the maximum penalty is a fine not exceeding $250,000.

The overwhelming consideration for a teacher facing allegations ought to be how to present the most effective defence if criminal charges are laid. In terms of dishonesty offences, a defence might be that a teacher believed that he or she was entitled to the relevant property, that the property was “on loan” or that someone else took the relevant property. In Russell, the complaint related to the allegedly fraudulent filing of roll returns.162

A teacher who faces dishonesty charges should consider the nature of their defence, if any. Then, if there is a real risk that the effectiveness of the defence will be prejudiced by participating in an employment investigation, the teacher should seek agreement with the Board to suspend the employment investigation until the criminal proceedings have been resolved. If it is not possible to obtain agreement, then the teacher should apply to the Authority for an injunction preventing the Board from continuing with the investigation or taking any disciplinary action. If no injunction is ordered, the teacher should consider whether it is better to participate in the employment investigation and risk self-incrimination or whether it is better to resign and prevent the Board from continuing with its investigation. If this happens, then the teacher should be aware that the Board is required to report the allegations and the teacher’s resignation to the NZTC who may conduct their own investigation.163 A teacher can be compelled to participate in the

investigation and there is no bar to information that is disclosed to the DT

from being passed on to a prosecuting authority.164 However, communications between a teacher and their lawyer or representative will be privileged.165

These considerations require that the risk of self-incrimination and adverse publicity is carefully managed.166 There may also be civil proceedings if a Board seeks to recover property. In this instance, it may be difficult to obtain a stay in relation to the civil proceedings. This overlap between an application for a stay in employment proceedings and an application for an injunction to restrain an employment investigation is potentially problematic because once relevant information has been disclosed in civil proceedings, there would no longer be any purpose in granting an injunction. In this narrow class of case, an applicant is less likely to be awarded an injunction.

Other issues may be relevant to sentencing. For example, in one case the fact that a teacher was looking after his elderly mother persuaded the court that home detention was appropriate.167 A teacher should consider how to present the most effective defence and, if convicted, how to mitigate the severity of the penalty.

161 Health and Safety in Employment Act 1992, s 49.

162 Russell v Wanganui City College, above n 11.

163 Education Act 1989, s 139AK.

164 Education Act 1989, s 139AY.

165 Education Act 1989, s 139AZA.

166 Note the publicity that arose after a male teacher resigned from Rangi Ruru College following an affair with a Year 13 student – Stuff “Teacher quits after Affair with Student” (2011) at <>. The teacher and his former school were identified.

167 Stuff, “Former Teacher Sentenced over Sex Crimes” (2010) <>.

It would be possible for a teacher to be acquitted of an offence yet still be dismissed because the standard of proof and the elements requiring proof are different in terms of both an employment investigation and a disciplinary hearing. In relation to the former, the Board needs to satisfy itself that a teacher engaged in serious misconduct and that dismissal is justified in terms of the s 103A test of justification. In relation to the latter, the DT must decide whether a teacher has engaged in serious misconduct and, if so, what an appropriate sanction is. The standard of proof is the civil standard flexibly applied.168 It is conceivable that a teacher could be acquitted of criminal charges yet be dismissed. Alternatively, a Board may not conclude that a teacher has engaged in serious misconduct but a complaint to the NZTC may be upheld. In this situation, if the DT orders suspension or cancellation of the teacher’s registration, then the Board would be required to terminate the teacher’s employment.169

A scenario would be even more complex if a prosecution is brought by the Department of Labour under the Health and Safety in Employment Act

1992. The complication arises because either the Board or a teacher or both could face prosecution. For example, a Board could be prosecuted for failing to provide a safe environment for staff.170 In this situation, it could be a Board that seeks an injunction. This raises the question of whether a non-natural person can claim the right to silence. Certainly, corporations are precluded from relying on the statutory privilege against self-incrimination.171 However, the privilege against self-incrimination is expressly preserved by s 31 of the HSEA and the definition of “person” in s 2 is sufficiently wide to include the Crown.172 It is strongly arguable that a Board could rely on the privilege against self-incrimination in support of an application for an injunction postponing employment-related proceedings. In any event, the equity and good conscience jurisdiction of the employment institutions would justify granting an injunction in appropriate circumstances.

If both a teacher and a Board face criminal charges, they may agree to suspend a disciplinary investigation or employment proceedings pending the outcome of criminal proceedings.173 If only one of the parties to the employment relationship faces the prospect of criminal charges, then agreement may be more difficult to obtain.

168 See Z v Dental Complaints Assessment Committee, above n 151 and Honda New Zealand Ltd v New Zealand Boilermakers Union (1990) ERNZ Sel Cas 855; [1991] 1 NZLR 392; (1990)

3 NZELC 98,130; [1990] 3 NZILR 23; (1990) 4 PRNZ 330 (CA).

169 Education Act 1989, s 120B.

170 This is similar to the scenario in Ms X v Bay of Plenty District Health Board, above n 121 where the BPDHB sought an injunction preventing Ms X from proceeding with a personal grievance claim.

171 Evidence Act 2006, s 60(4).

172 This could be changed if the Health and Safety in Employment Amendment (No 2) Bill

2008 (241-1) is enacted. In its current form, the Bill will apply s 60 of the EA to s 31 enquiries.

173 It should be noted that a Board of Trustees would be unlikely to defer a disciplinary investigation on a voluntary basis.

VII. Conclusion

The right to silence, the privilege against self-incrimination, the duty of good faith and the equity and good conscience jurisdiction are all relevant factors that determine the circumstances in which employment institutions are prepared to grant an injunction. Recent and proposed amendments to the right to silence and the duty of good faith do not appear to alter this position, especially from the perspective of employment institutions. An injunction is likely to be ordered where employment proceedings have the potential to influence the outcome of related criminal proceedings. This appears to be a less rigorous approach than that adopted by the High Court in relation to an application for a stay of civil proceedings.

This divergence could be attributable to a greater confidence on the part of High Court judges that criminal procedures can be managed in a way that eliminates the risk of injustice, a more flexible jurisdiction in the employment institutions, and differing interpretations of McMahon. The consequence for Boards is that an injunction preventing them from carrying out an employment investigation is a real possibility. If the possibility becomes reality, Boards could be liable to pay teachers for prolonged periods while criminal proceedings are resolved. An alternative approach is to refer a complaint relating to serious misconduct to the NZTC. This approach has the potential to resolve outstanding issues in a more timely manner. Boards should carefully consider the most appropriate response to allegations that a teacher has engaged in serious misconduct.

Teachers should be aware that if they engage in serious misconduct, they could face the risk of a criminal prosecution, either by the Police or the Department of Labour. These penalties tend to be much more severe than any order a Board or the NZTC might make. The seriousness of these penalties and the nature of their defence to criminal charges should inform their response to a disciplinary hearing and/or an employment investigation. Teachers should be aware that the standard of proof, the nature of the hearing and the elements requiring proof differ between all three proceedings. This means that being acquitted of criminal charges is not automatically a defence to allegations of serious misconduct.

When the EA was enacted, a real opportunity to increase the efficiency of proceedings was lost by failing to provide witnesses with certificates that prevent any disclosed information from being used against them in criminal proceedings. The current situation is less than perfect. Obtaining optimal outcomes requires a careful analysis of available options and a considered and well-informed approach, both from the perspective of a Board and a teacher because the conflict between the right to silence and the right of an employer to conduct an employment investigation may require parties to an employment relationship to undertake a “complex balancing exercise”.174

174 Spackman and Belton, above n 131.

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