Exit when a serious misconduct disciplinary process or investigation is underway
While relatively uncommon, the situation can occur where a person has been employed, engaged or contracted by a government organisation and then found to be the subject of pending criminal charges or a serious misconduct investigation.
An employee can resign at any time by notifying the manager that they will be leaving and giving the correct notice period. Accepting a resignation request is not a formal requirement. Once an employee’s notice period is completed there is no longer an employment or contractual relationship and the disciplinary process ceases, however an investigation can continue. An organisation should consider inviting the employee to stay (including possibly retaining them on the payroll) until the disciplinary process or investigation is concluded.
Where the employee or contractor leaves, they are informed the investigation will conclude with a record made, and that this record may be disclosed to future employers. The person should be given the opportunity to add their own statement to this record. Exceptions to this are where there are compelling and documented reasons not to conclude the investigation and specialist advice and authorisation by the organisation’s chief executive is obtained.
If serious misconduct by an employee is found after the person has left the organisation, the organisation should consider whether any reference given by the organisation for that person which resulted in employment should be corrected. This may include informing the ex-employee and giving them the opportunity to respond to the investigation.
- All investigations into serious misconduct should be concluded and the actions recorded even where the person has ceased to work for the organisation. This requirement applies except in exceptional circumstances and subject to obtaining organisation chief executive approval.
- When a person is the subject of a serious misconduct investigation and resigns before the investigation is concluded, consideration is given to asking the employee to remain in employment until an outcome is reached to give them an opportunity to fully participate.
- Where the employee or contractor leaves, they are informed the investigation will conclude with a record made, and that this record may be disclosed to future employers. The person should be given the opportunity to add their own statement to this record.
- When a breach is identified involving serious criminal activity, organisations should immediately report the matter to the Police or the Serious Fraud Office.
- When the breach is an issue of national security, it must be reported to the New Zealand Security Intelligence Service.
- Policies and procedures include expectations and guidance for people in the organisation who have been asked to be referees for current or past employees to ensure that their feedback is open and honest about the person’s employment record. Where the referee is unable to comment on these matters due to a confidential settlement with the person concerned, they decline to provide a reference.
- If serious misconduct by an employee is found after the person has left the organisation, the organisation should consider whether any reference given by the organisation for that person which resulted in employment should be corrected. This may include informing the ex-employee and giving them the opportunity to respond to the investigation.
Settlement agreements, confidentiality and non-disclosure statements
Settlement agreements can assist to minimise potentially drawn-out processes where the parties have not been able to resolve a dispute or problem or where trust and confidence has irretrievably broken down. Settlement agreements should not be used to shortcut an investigation into wrongdoing.
If a decision is taken to enter into a settlement agreement with an employee or contractor, organisations are expected to include confidentiality or non-disclosure statements only when they are genuinely necessary and in the interests of both parties. Confidentiality and non-disclosure statements should be written where possible, so they do not prevent the agency responding openly to reference requests from future employers. Finding the right balance is a matter for judgement in the particular circumstances of each case. Organisations must consider what interests need to be protected in the circumstances and whether a non-disclosure statement of some kind is genuinely necessary to achieve that protection. Any restrictions need to be lawful, proportionate and have a justifiable reason. These statements recognise that in some cases confidentiality and non-disclosure statements are appropriate.
As at all times, when conducting misconduct investigations and negotiating settlement agreements, organisations must follow good employer practices and treat employees fairly, reasonably, in good faith and with respect and must observe natural justice principles.
- Settlement agreements including confidentiality provisions should only be used where genuinely necessary.
- Any decision by an organisation to enter into a settlement agreement must be supported by documentation of the process and the rationale for the agreement. If confidentiality or non-disclosure statements are included in a settlement agreement, it should be approved by senior management.
- If entering into confidential settlement, agencies and the person need to discuss what information will be provided by the agency if asked for a reference. The agency needs to consider its responsibilities for ensuring the integrity of the system in those discussions.