False allegations a dangerous game at every level
The threshold for establishing that a complaint is false is a high one.
OPINION: US President Donald Trump has taken aim at his predecessor Barack Obama alleging that he ordered wiretapping of his phones during the 2016 election.
Trump made the allegation in a series of tweets including one which stated: ‘‘How low has President Obama gone to tapp [sic] my phones during the very sacred election process. This is Nixon/ Watergate. Bad (or sick) guy!’’
Despite repeated requests from the media and lawmakers, Trump has provided no evidence to back up his allegations. White House spokespeople have also consistently refused and, in many cases, been unable to shed light on what information Trump relied upon to make his allegations.
Members of Obama’s former Administration were quick to deny the claims.
A former National Security Agency lawyer has also explained that Obama did not have the power to order a wiretap, as such action needed to be authorised by an independent Foreign Intelligence Surveillance Court.
Noah Feldman, a professor at Harvard Law School, has said that if the claims are proved to be false, this could be a major scandal that could result in Trump being impeached.
He went on to say that ‘‘when President Trump accuses Obama of an act that would have been impeachable and possibly criminal, that’s something much more serious than libel. If it isn’t true or provable, it’s misconduct by the highest official of the executive branch’’.
Whilst this is obviously an extraordinary set of circumstances there are many other scenarios in which people make false claims about others. In particular it is not uncommon for this to occur in workplaces.
Knowingly making a false complaint can cut across the trust and confidence in an employment relationship. It is a form of dishonesty which more often than not, can lead to dismissal.
Where an employer receives a formal complaint about another employee, the first step is usually to investigate it. The role of the investigator is to determine whether or not the alleged conduct occurred. However investigations can go one step further than this and determine whether or not unsubstantiated complaints have been made maliciously, or in the knowledge that they were false.
Given the impact that false allegations can have on the person accused of them, this is something that employers are entitled to take very seriously.
One good example of how employers might treat false allegations comes from Australia and involved John Hunter who was an employee in the Department of Sustainability, Environment, Water Population and Communities.
Hunter complained to the Department that his manager had displayed threatening and bullying behaviour towards him. Interestingly, the complaint came soon after the manager had completed Hunter’s performance review, and assessed him as needing development.
The department’s investigation into Hunter’s complaint led it to form the view that the veracity of the allegations was doubtful and that they may in fact have been made falsely.
An investigation found that Hunter had, along with a number of other employees, made the complaint in the hope that the manager would be dismissed. In one email that was brought to the attention of the department, Hunter advised another employee that he would ‘‘play the indigenous card’’ as a way of achieving this goal.
Hunter, along with another employee, was dismissed on the basis that his complaint was false and vexatious. Unsurprisingly, Hunter’s attempt to challenge his dismissal in the Fair Work Commission was unsuccessful.
It is important to bear in mind that the threshold for establishing that a complaint is false is a high one. Just because a complaint is not substantiated does not mean that an employee has been dishonest in making it, so employers should be careful not to jump straight to this conclusion.
Whether Trump’s allegations are true or not remains to be seen. There have been calls, including from Trump himself, for an investigation into the alleged wiretapping to be commenced. Should this occur, and it be found that Trump did not have any reasonable basis for his claims, then he may find that his job is in jeopardy too if Feldman’s assessment is correct.
Back to the employment context – employees should never be discouraged from raising issues and making complaints, but those who knowingly make false allegations may well find that this backfires on them.
Susan Hornsby-geluk is partner at Dundas Street Employment Lawyers www.dundasstreet.co.nz