Anonymous accusations and the use of secret witnesses

This article outlines employer obligations to provide all relevant information to an employee who is the subject of an employment investigation, including the details of a complaint and the identity of complainants and witnesses.

Natural Justice

In almost all circumstances, natural justice will require that an employer identify the individual who raised a complaint or was a witness to an incident.

An employer conducting a disciplinary or performance investigation is guided by a number of obligations, set out in the Employment Relations Act. Employees have a right to a fair hearing, i.e. that an investigation be carried out in a fair manner. Fundamental to this process is that an employee receives all information relevant to the allegations, and has a fair opportunity to consider and respond to it. Further, that the employee has an opportunity to present that defence to an unbiased decision maker.

If an employer provides only vague or unsupported allegations, it makes it very difficult to respond. Allegations of an employee being “confrontational”, “aggressive” or “heavy handed” in their approach”, of being “unhelpful”, or “late in delivering on work”, will not contain sufficient information to enable the employee to know the allegations against them, and properly respond. The employer is obliged to provide detail of particulars such as: when the employee was unhelpful; to whom; in what way; whether there were other similar instances; whether others were witness to the incident; and whether there was any other supporting information that could assist the employer’s enquiry.

Knowing the identity of an accuser/witness may make a difference to the employee’s response. For example, the individual might have a particular motive for making his/her statement, or a reason to embellish an accusation.

Good Faith

Withholding information will ordinarily be a breach of good faith, and result in an unjustifiable process. The duty of good faith applies to the relationship between an employer and an employee. It requires both parties to be active and constructive in maintaining a productive employment relationship. Good faith requires that parties do not mislead or deceive the other, or do anything likely to. It also requires an employer that is proposing to make a decision that could have an adverse effect on the continuation of an employee’s employment to provide access to all information relevant to that decision before a decision is made. Information is to be provided at a time when the employee has an opportunity to provide meaningful comment on it.

In employment law, it will be a rare, and exceptional circumstance where there is justification for the identity of an accuser or witness to remain anonymous, and that a complainant’s right to confidentiality might override an employee’s right to receive all relevant information.