Earlier this week, it was revealed that every Chiefs player on the books for 2016 would receive a formal warning following the recent stripper scandal – but rather than end the ongoing saga, it seems New Zealand Rugby Union’s decision could actually open the organisation up to legal risk.
“From an employment law perspective, this was a somewhat surprising announcement,” says Auckland-based employment lawyer
Laura Scampion.
“It had been made clear before the investigation commenced that a significant number of Chiefs players (more than 10) were not at the Mad Monday function where the stripper performed,” she continued. “We were left asking, why did these players get a warning?”
At the recent press conference, Steve Tew – the CEO of New Zealand Rugby Union – said eye-witness accounts and a subsequent investigation both confirmed that no player had acted in a way which would warrant individual sanction for misconduct.
Instead, he explained that the players had “accepted collective responsibility for deciding to engage this form of entertainment" – hence the blanket warning.
“Essentially, it appears as though NZRU deemed that the team made the decision to hire the stripper, that was misconduct and that all players in the team should be sanctioned,” explains Scampion. “Whether or not players were present at the actual function appears to have been irrelevant in issuing the warning.”
The Chiefs have maintained throughout the process that management were in the dark about the decision to arrange a stripper and while there is nothing unlawful about the activity, Scampion says employers are entitled to discipline as a result of the disrepute it caused.
“There are plenty of workplace dismissals that occur now because the employee brings the employer into disrepute or damages its reputation,” she told HRM. “The damage the players have caused to the Chiefs by arranging a stripper is already evident. Two sponsors have withdrawn sponsorship this week.”
However, Scampion – a partner and employment law specialist at DLA Piper – says the Chiefs’ decision to assign collective blame isn’t necessarily the right way to react and, in many workplaces, the move would expose employers to significant risk of a personal grievance.
“Blanket or collective warnings are unusual because of the difficulty in attributing the same level of blame for the same incident to a number of employees,” explained Scampion. “Such sanctions should only be used in extreme and limited circumstances.
“If a warning is issued to an employee unfairly or unlawfully, this can give rise to an unjustified disadvantage grievance or claim against the employer,” she told HRM. “If the employer does not resolve this through standard workplace measures, the employee can bring a claim in the
Employment Relations Authority.
“This is a difficult claim for the employer to endure because the employee is still in the workplace (not having been dismissed) but they have a legal action on foot with their employer,” she continued.
So, if a group sanction isn’t the best approach, what is?
“Conduct a thorough investigation into the incident,” stresses Scampion. “It is often best that an external party be engaged to conduct this investigation to remove any element/risk of bias. There has already been some criticism levelled at the Chiefs and NZRU for 'protecting their own' through the NZRU keeping the investigation in-house. The fact that the players have chosen a cone of silence doesn’t assist with these allegations.”
Once the investigation is complete, Scampion says it should be clear what was likely to have happened and who was involved.
“Those employees that are potentially blameworthy should have the allegations put to them, be invited to attend a disciplinary meeting and informed that the outcome of the meeting could be a disciplinary sanction,” she advised. “The employer should always make clear what that sanction might be. Once the meeting has taken place the employer should make a decision and inform the employee of that decision.
“Any meetings with the employee should ideally take place with a support person/representative present and warnings should not continue in effect for an indefinite period. Warnings should be recorded in writing,” she added.
“A warning, or caution on an employee's employment record is a serious sanction,” noted Scampion. “Employers should be cautious in taking the approach that the NZRU have in this instance.”
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