All in a day's work: Strip search, sacking and reinstatement

Does it matter? The sexual orientation of an airport Customs officer was at the heart of an employment dispute at Christchurch International Airport. Photo / Thinkstock

Opinion

Strip search, sacking and reinstatement.

All in one article.

Hey, I'm not beyond putting slightly more salacious words in the title to hook in the odd reader who might not otherwise cast their eyes this way...

But when all is said and done, it is still all about process... It's something I will no doubt come back to time and time again, but in employment law it really is about process, process, process. And a fair one at that.

It is somewhat ironic that I am writing this blog entry from Christchurch (I am based in Auckland, but am multi-tasking whilst attending meetings for a client in Christchurch).

That said, I flew to Christchurch from Auckland and the domestic nature of the flight meant no Customs screening. But, had I been screened at Christchurch International Airport, I could well have been screened by either, or both, of the two Customs officers reinstated last Wednesday, following a decision of the Employment Relations Authority.

The two Customs officers (an Assistant Chief Customs officer with 24 years' service and an officer with 8 years' service) were dismissed earlier this year by the Customs Service after one was found to have leaked concerns to the media about a gay officer working at Christchurch International Airport, and the other was found to have known about the conduct and not disclosed it to his employer.

In particular, the employees were said to have spoken to the media about being worried that the gay officer was performing more than his share of strip searches and was making lewd comments about the body parts of male passengers.

The employees were known as being long standing opponents of the Customs' policy that passengers were not entitled to know the sexual orientation of officers conducting strip searches.

The Customs Service concluded that the conduct of the officers amounted to serious misconduct in that it irreparably destroyed the necessary relationship of trust and confidence between the parties. It dismissed them in March 2010.

The officers challenged their dismissals and were successfully reinstated, with compensation for lost wages but without compensation for hurt, humiliation and distress. No order was made under this head on the basis of the Authority's finding that neither officer had acted in an 'unblameworthy way'.

It was accepted that the leaking of information to the media did constitute a breach of Customs' Code of Conduct and capable of constituting serious misconduct.

It was also accepted that the Code of Conduct required the reporting of wrongdoing by another officer. However, the Authority found that a fair and reasonable employer would have found that there was insufficient evidence to make out those findings in respect of the allegations against the two officers.

The Authority found that there was enough to create suspicion, but that these were grave allegations and that there was insufficient evidence, a belief was not enough. The test used was the balance of probabilities.

At the heart of the Authority's finding was that Customs' investigation into the leaks was not conducted in a way that was fair and reasonable. The Authority held that Customs failed to provide specific allegations to the officers, some relevant information was withheld, and ultimately the officers were not afforded a real opportunity to explain.

There it is: process, process, process. It is a fundamental requirement of natural justice that a person is entitled to know exactly what is being alleged, by whom, and is afforded a real and fair opportunity to respond.

We often say to clients, if you put yourself in the shoes of the person about whom the allegations are being made, would you consider you have sufficient information upon which to respond and to give your version of events, and a reasonable opportunity to do so?

Interestingly, it is a test the Employment Court has applied in the past - referred to as 'the family member test' - ask yourself: would you be happy if this was the process being followed in respect of your husband/wife/mother/father/sibling/insert appropriate significant other...

The other interesting aspect of the case is the Authority's decision to order reinstatement, particularly taking into account the fact that the gay employee (about whom the allegations were made) remains employed by the Customs Service. His name has been suppressed and media reports suggest he is not currently working at the airport but it is not clear whether he will return.

Having done a significant amount of work within the aviation sector over the years, I know that airports are their own microcosm, located as they are out of the main cities, and this brings with it, its own challenges. Particularly in terms of relationships between staff - both good and bad.

The Customs Service vigorously opposed reinstatement but ultimately the Authority was satisfied by the assurances of the employees that they could put their opinions to one side and act professionally, even when working with the gay officer in question. Like all reinstatement cases, whether that is actually possible, remains to be seen.

There is an indication that the Customs Service will appeal the decision, so it may be a case of watch this space but in the meantime it raises interesting issues about the primary remedy of reinstatement in practice. Is it in anyone's best interests for those employees to be put back into a working relationship? Is it workable?

In the meantime, no strip search for me on the way home via Christchurch domestic airport!


Bridget Smith