KEY POINTS:
Suspended Assistant Police Commissioner Clint Rickards has made it plain he wants to return to his job as Auckland district commander. It is not that simple. The police hierarchy says it still has issues to resolve about his appointment. The Herald asked two lawyers to present hypothetical arguments for and against reinstatement.
AGAINST
Shan Wilson, Simpson Grierson
Simpson Grierson employment law specialist Shan Wilson said that Mr Rickards might have unwittingly provided the police hierarchy with the very ammunition it had been looking for, "post coming out of that courtroom in 2007."
"It's how somebody frames his dismissal in a way. He's been found not guilty of anything so why would that [the rape allegation] be held against him? But if it's about the criticisms he's repeatedly and publicly made of the police force since he left court, then I think there is an argument he should be dismissed," Ms Wilson said.
"I struggle with the fact he's to lead the Auckland police and yet he made public criticisms of people he's to lead, so in that regard his public criticisms brought an element of disrepute on the police. That in itself is a form of potential misconduct.
"If I'm framing his grounds for misconduct that way then I think there's an argument. He might be able to say, 'Look it was just heat of the moment, the pressure when I walked out of court I made those statements.'
"But he actually hasn't retracted them, and he's gone on to make his comments in the Sunday Star-Times, and allowed those to go through when he could have pulled them. Then there's the 60 Minutes show where he appears to publicly criticise again.
"If we go outside the court, to the Sunday Star-Times, on 60 Minutes, well that is completely inappropriate behaviour for someone who says he should go back into such a senior policing position in Auckland."
Strict code of conduct regulations could be cited, but they were weakened by the notion that police may not have recorded warnings or disciplinary action against Mr Rickards' immoral behaviour in the past.
"Why didn't they [police] act on them years ago? They may be unable to dismiss on those grounds because there's been effectively acquiescence in not raising the issue. It's not that they've accepted or agreed with his behaviours, but they haven't raised it as a breach of the code of conduct when they should have, years ago.
"An employer who learns of misconduct or a potential breach of employment obligations has to bring it to the employee's attention straight away and deal with it. If you let it slide, how in the world can you say that it damaged your trust and confidence in them or that it was such serious misconduct that it went to the heart of the employment relationship, if you knew about it and sat on it for years and years."
Comments that referred to still being, and always being, a friend of convicted rapists were also damaging. Also, Mr Rickards had questioned the court's process in delivering Schollum and Shipton's past guilty verdicts.
"I have a real problem with that, and it seems that the public do too. Women need to have confidence in making rape complaints to the police. So what he did in saying 'the rapists are my friends' is that he potentially undermined the confidence of women in the police force making the right judgments on rape cases."
The comments he had made over the past week were part of a complete "package" that could be used against Mr Rickards by police employment lawyers.
Going down the track of the rape allegations was not an option.
"We don't know, the police haven't told us what they're doing or what they're thinking but I would imagine they're not going to take it that way, at all. And they shouldn't take it that way.
"They can't undermine the court system by appearing to take any action in relation to the allegations that were made, because he wasn't convicted."
There was a question about Mr Rickard's integrity as he had failed to stand down after admitting that what he had done was morally wrong.
"I don't think he's appropriate to lead the police in Auckland [because of] the way he has been so aggressive about the police involved and women laying complaints.
"That's why legally I think that he isn't fit for the position he was in and that he wants to return to."
Dismissal was not the only option for police to explore. Another avenue would be to demote Mr Rickards to a position where he did not come in to contact with the public.
A big payout in return for a resignation was unlikely.
"I think it's the Auditor-General's report of a few years back that said that there shouldn't be golden parachutes or golden handshakes given in the public sector.
"So there'll be real problems for the police in their ability to get approval to do so."
FOR
Maria Berryman, Bell Gully
Bell Gully employment specialist Maria Berryman said Mr Rickards' options were to "go down the pre-emptive strike path" by injuncting the police from dismissing, "or, if they go ahead and dismiss then he's looking at challenging an unjustified dismissal".
"On that basis, from a legal perspective, an employer has extremely high thresholds to pass to justify a dismissal.
"The test for justifying a dismissal is an objective one, it's not subjective."
A prescriptive process surrounding discipline and dismissal was likely to be set out in Mr Rickards' contract, particularly given his rank.
"What we're really looking at is that if he's going to be dismissed, the employer is relying on the fact that this is serious misconduct. What is the misconduct that the employer is relying on?
"That will be the one thing that his representatives in the employment arena may well be challenging.
"What is the misconduct that is so serious and grave that you are relying on in your decision to dismiss?
"One [could be] sexual misconduct 20 years ago. In a broader sense, that's historic. If this guy had been warned already ... then the police have that on their files, they know about it, therefore it would be open for him to argue it's been dealt with.
"[He would say] 'it's double jeopardy if you're going to rely on that now to dismiss me'.
"He's been employed post this incident and moved up the ranks.
"In a strictly legal sense, if you take all the public interest out of it and you're dealing with Joe average employer and employee there's probably very little chance of a court finding any empathy or sympathy with an employer saying 'we still believe we can't reinstate you or you should be dismissed'.
"It's inconsistent treatment. He would argue it should have been dealt with at the time.
"He will argue, 'well you knew about this 20 years ago and it didn't seem to be an issue then'."
Another ground for dismissal could be the fact he had spoken out post-trial, criticising police and previous court findings against his friends Schollum and Shipton.
"If you were putting the case up for him, that would be a difficult hurdle," Ms Berryman said.
"Although he seemed very careful to not criticise his employer, the police, but did talk [criticised] about team Austin, in reality there is no difference.
"He's openly criticised in a public forum his employer, which he may find difficult to get around in terms of the employer's allegations that he's breaching his duties of good faith."
Public calls for Mr Rickards' head would not hold any weight in court, she said, as it was an employment matter between Mr Rickards and police.
"In terms of the law, the employer does have a duty to consider mitigating factors and alternatives to dismissal.
"In this situation you've got someone in a senior position for 20 years or more.
"There is a duty on police to consider alternatives to dismissal.
"He may well make submissions on alternatives if the police are basically staring down the dismissal barrel."
Mr Rickards' previous work as an undercover agent could be brought up during the employment dispute.
"He probably received training and direction to mix in certain circles and fraternize with a certain part of the population, which may well have caused him to get himself in the situations he did.
"So it may be that he pulls that out, and argues, 'look, this is what you required me to do as my employer and now this issue has been raised some 20 years later, you're just hanging me out to dry and that's unfair on your part'."
