Manawatu Employment Law Services
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NATURAL JUSTICE DEMANDS THAT AN ACCUSED KNOW THE IDENTITY OF THEIR ACCUSER

It has become commonplace in society today for people hiding behind anonymity to criticise, vilify, or abuse others.  Such reprehensible conduct is rife in social media and leaves the victims of it feeling so helpless that it has led to suicides.  It is extremely cowardly behaviour, and often shows the perpetrators up as envious and spiteful.  It is also common for these types of people to put forward assertions that are completely unsubstantiated but claim they are true.  Unfortunately, they can largely get away with it on the internet but in our courts they cannot.  It is a strong principle of our justice system that an accused should know their accuser in order to better defend themselves against any allegations. 

The requested anonymity of complainants is an issue that is not uncommon in employment disputes.  It usually arises in allegations of bullying or sexual harassment when the complainant fears repercussions from speaking out.  That is understandable; however, the principle of natural justice must override that consideration or else people will feel free to make whatever assertions they like about others without being held accountable for them, as is the case on social media.  The recent case of Adams v Wellington Free Ambulance Service Inc  23 July 2010  WA 81B/10 upholds this principle in that it finds that Ms Adams, although guilty of serious bullying and abuse of colleagues, was unjustifiably dismissed because Wellington Free Ambulance did not provide her with the names of the complainants and the details of their allegations.  The Employment Relations Authority, however, would not give her the remedy of reinstatement that she sought as it found that the level of her offending and her continuing failure to appreciate the effect on others of her behaviour would not be conducive to a harmonious working relationship with her former employer and colleagues.  The Authority also reduced by 60% the compensation it awarded her for the unjustifiable dismissal as recognition of her significant contribution to the circumstances that led to it.  It is important to note, also, that some of this bullying and abusive behaviour consisted of comments posted on Ms Adam’s Facebook page.  The employment courts have shown no hesitation in taking social media comments about employment issues into its purview.

The case of Brown v Bob Owens Retirement Village Ltd  15 November 2013  [2013] NZERA Auckland 526 reinforces the finding in Adams v Wellington Free Ambulance Inc..  Ms Brown was dismissed by Bob Owens Retirement Village after an investigation was carried out which depended entirely on the allegations of six other staff members who requested anonymity which was granted. Ms Brown was not given even the details of the allegations, and thus, concluded the Authority, she was wholly unable to properly defend herself.  Again, the Authority held that a dismissal based on secret witnesses was totally inadequate and unjustified.  It stated that it seemed that Bob Owens simply accepted what the complainants said about the fear of retribution without checking to see if there was any validation in such fear. 

The latter observation points to another inherent weakness in anonymous complaints based on supposed fear of retribution.  This is a very easy claim to make, but such a claim should have some provable substance to it.  Instead, it is often taken at face value. 

The courts have indicated that there may be circumstances where the identity of complainants may be legitimately withheld, but such circumstances would have to include evidence of serious threat, or some other legitimate fear that is based on reasonable grounds.

There is before Parliament (June 2014) legislation that will provide remedies to people who suffer from malicious comments by unidentified persons on the internet.  It is to be hoped that, as in employment law, this will have the effect of largely stopping nameless cowards from hiding behind their anonymity. 

Posted: Thu 03 May 2018

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