Bosses can have right to know about criminal charges, despite name suppression says Supreme Court

The name of a Otago University security guard was wrongly suppressed, the Supreme Court has ruled. Photo/File

Bosses can have a right to know about criminal charges that are relevant to a worker's job even if the employee has name suppression, the New Zealand Supreme Court has ruled.

The country's highest court this month released its decision in a case involving a former University of Otago security guard and the tertiary institution.

The guard was given name suppression after being discharged without conviction for charges of assaulting a female and willful damage.

A university staff member, who had received a tip-off, was in the public gallery of the Dunedin District Court when the man was sentenced, and after seeking legal advice, told management about the offending.

The university suspended the man, and he was given a final written warning as a result of an employment investigation.

He raised two personal grievances with his employer, claiming that his suspension and the final written warning each constituted an unjustified disadvantage, but the Employment Relations Authority found in the university's favour.

The Employment Court agreed, finding that it was not against the law for the staff member to communicate the suppressed information to the University because the University had a genuine interest in receiving the information.

The Court of Appeal upheld the Employment Court's finding, as did the Supreme Court last week.

Justices William Young, Susan Glazebrook, Terence Arnold, Mark O'Regan and Ellen France said that the relevant part of suppression laws didn't cover information going to "persons with a genuine need to know".

The five judges said that it was apparent to them that the security guard's work involved protecting students, particularly at night, and that "his employer had a genuine interest in knowing he had pleaded guilty to an offence of violence against his spouse".

"It is also relevant that rather than working for a one-person company or similar small enterprise, the appellant worked for a large entity in which a number of people had a legitimate interest in work-related issues raised by his conduct. The disclosure [of the charges] was limited to a small group, all of whom can fairly be said to have a need to know this information," the judges said.

While they couldn't be certain, the judges thought the District Court discharged the guard without conviction and then suppressed his name primarily to protect him from losing his job.

The quintet of judges said they agreed with the Court of Appeal that this was an incorrect basis for a name suppression order.

"That is because of the obvious link between [the guard's] employment and the nature of his offending. Further, the decision proceeded on what has proven to be a false assumption, that is, disclosure to the employer would result in dismissal.

"This case demonstrates the need to be careful to avoid making suppression orders which over-reach," said Justices Young, Glazebrook, Arnold and O'Regan

The Supreme Court dismissed the security guard's appeal.

Commenting on the case today, law firm Simpson Grierson said that the Supreme Court had confirmed that "if criminal charges against an employee are relevant to their employment, employers may have the right to know and communicate details that are otherwise subject to non-publication orders".

"For example, this may be the case where an employee in a position of trust pleads guilty to a charge involving dishonesty.

"Further, where criminal charges exist that are relevant to an employee's role, an employee could be in breach of their good faith obligation by failing to disclose these to their employer in a timely way," the firm said in a note today.