Lies or damned lies for dismissal?
Jacinda Ardern recently said in a television interview that an MIQ worker who had not been tested for Covid-19 since November 2020 had been ‘‘lying to the employer’’. This is a serious allegation to make, and it seems that the prime minister may have spoken out of frustration, as she subsequently sought to temper these comments.
In relation to whether the MIQ worker should be dismissed, Ardern said that this was a decision for the employer.
Employers are often confronted with situations in which it is alleged that an employee has lied in the course of their employment. However, it is not a given that this should always lead to dismissal. An employer is required to consider the circumstances and context, and then make an assessment as to the seriousness.
Not all lies are equal. People tell ‘‘white lies’’ regularly, often to avoid hurting another person’s feelings or to get out of doing something they would rather not do. In an employment context this might include claiming that they have not reviewed a paper in order to avoid having to give negative feedback, or saying that they are too busy to attend a particularly tedious meeting. Whilst such statements might be untrue, they would not generally justify dismissal.
More serious lies may result in dismissal if they undermine the trust and confidence in the employment relationship. Such instances might include where the lie results in damage or loss to the employer, or creates some other business risk. If it is found that the MIQ worker in this instance did in fact knowingly mislead their employer, this could potentially be dismissible given that it could jeopardise the company’s contract to provide border security.
The other point to be aware of is that an employee should not generally be dismissed for an inadvertent omission or misstatement of the facts. Generally ‘‘lying’’ requires some form of deliberate or conscious intention. In this regard the prime minister’s comments may have been somewhat precipitous in the absence of an investigation into what the MIQ worker told their employer and why.
Employers should not leap to conclusions in cases where it appears that an employee may have been economical with the truth. In many cases what the employer may have thought was a lie, turns out to be a misunderstanding or the employee having a different view of reality. Not necessarily a deliberate lie. The context needs to be considered with an open mind in any disciplinary investigation.
And here is an important tip for employees – if caught out in a lie, own it and apologise. Employees generally make it far worse for themselves if they seek to justify their actions or deny that they ever said what they did. This is not to say that employees should not explain the context, but if they have demonstrated a lapse of judgment, the worst thing to do is to reinforce that by insisting that they did nothing wrong.
It is not uncommon for employees to be dismissed, not for the conduct that resulted in a disciplinary investigation in the first place, but for lying or demonstrating poor judgment during the course of the process itself. Where this occurs the employer must put this ‘‘new allegation’’ to the employee, specifically that they are now accused of lying in the investigation, and give them an opportunity to provide an explanation.
In this regard the Employment Court said in a 2014 case involving George and Auckland Council that ‘‘a proved lie, told in denial or explanation of an allegation of misconduct, may not necessarily assist in the proof of the misconduct, but may be misconduct in itself’’. The court also found that the more senior the employee, the higher degree of trust and confidence the employer is entitled to have in them, and therefore the more serious the consequences of lying can be.
Humans are complex, and none of us can say that we have never told a lie of sorts. Likewise, we all make mistakes from time to time. But lying in an employment context can be destructive to the relationship of trust and confidence and can lead to dismissal. So, without stating the obvious, an open and honest approach is always going to be best.
And, if you stuff up, ‘fess up, don’t cover up.
– Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers.