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Honesty in Employment Law
Honesty. It's such a lonely word. Everyone is so untrue.
Those words are, of course, the utterings of the poet, Billy Joel. He was, of course, talking about the quality of honesty in the context of a personal relationship - but his words are equally relevant to the parties to an employment relationship. My evidence lecturer use to refer to the concept as the "good person / bad person" doctrine. It's a simple part of human nature. If we know that a person has lied on one occasion, we think it more likely that he or she will be disposed to lie on a subsequent occasion. There may be no logical reason to draw this conclusion - yet somehow we feel that a person who is proven to have been dishonest on one occasion is, in general, simply a dishonest person.
Honesty, like its cousin common-sense, is something of a rarity in employment law. Its absence in an employment relationship is, however, something which can lead to some serious problems.
In (the rather appropriately named) Lwin v A Honest International Co Ltd (Unreported, Employment Court, 1 April 2003) a problem arose concerning a teacher's absence from an English language teaching college.
The teacher, Mrs Lwin notified the Principal of the college that she needed to take sick leave for three days. Her notice was accompanied by a medical certificate confirming that she had seen a doctor, and was medically unfit for work for this period. The Principal granted the sick leave.
The next events were, however, a little more unusual. Lwin's husband, Mr Thant, wrote a letter (ostensibly on behalf of his wife) suggesting that she would be unable to return to work for a further week. Thant said that he had tried to follow up this letter by telephoning the Principal - but he could not get through to him.
The Principal had some misgivings about this letter. He noted that the signature on the letter was different from that that had appeared on earlier correspondence from Lwin. Also, the Principal's first name and the street name of the college had both been spelt incorrectly. Because the letter was type-written he had some suspicion that the letter had been forged.
Finally, the Principal managed to speak to Thant by telephone. A number of things were discussed in the course of that conversation. Importantly, the Principal's version of events was that Thant said that his wife might return to work in two weeks' time - in response to which the Principal expressed his displeasure, and asked that Lwin contact him directly about her continued employment at the college.
Perhaps as a consequence of his dissatisfaction, the Principal then wrote to Lwin. He asked for an indication of Lwin's intentions regarding her future employment, and explained that he would be unable to hold her position open beyond the end of a further week unless she could provide "compelling evidence" to justify the extension of unpaid leave.
Unfortunately, this letter was sent to an incorrect address. The Court accepted that Lwin never received it.
That was, however, something that the Principal did not realise. Assuming that the letter had been received - and because no response was forthcoming - the Principal proceeded to terminate Lwin's employment on the basis that she had abandoned her teaching position.
Lwin's true whereabouts did not become apparent until the matter proceeded to a formal hearing. It transpired that she had not been sick. In fact, her brother had taken ill in Thailand, and she had gone to see him with the intention of bringing him back to New Zealand. She had been delayed beyond the period that she had anticipated - and when she returned to New Zealand she said that she had become ill.
The Court's decision represents a balancing of the two different interests involved in the case.
On the one hand, the Court concluded that the Principal had incorrectly moved to terminate Lwin's employment on the basis of absenteeism. At the core of its reasoning was the fact that the Principal had incorrectly addressed his letter to Lwin. Even though he had not realised this error, it was an important feature of the case that, in the Court's opinion, meant that the Principal had not taken all reasonable steps before forming a conclusion that Lwin had abandoned her employment.
On the other hand, however, the Court took a dim view of Lwin's conduct. Put simply, she had not been honest about the reasons for her absence. That was not something that impressed the Court in its analysis of a fair outcome.
In the event, the Court concluded that Lwin had a legitimate personal grievance - but in view of her behaviour (especially in response to the matter when it had been raised by the Principal) her remedies were reduced to zero.
Put another way, Lwin's conduct was such as to disqualify her from the award of any remedy.
This case illustrates the significance of honesty in an employment relationship - and the consequences that may follow where a party acts dishonestly.
