Sometimes employees commit misconduct that amounts to criminal behaviour. Theft is an example. In addition to investigating the misconduct, the employer will lay a complaint with the Police. The Police will commence their own investigation, which may result in criminal charges being laid against the employee.

In a criminal investigation, a person has a right to silence. This means that he or she does not have to answer any questions or provide any information to the Police.

In an employment investigation, the situation is entirely different. Unless the employee answers the employer’s questions and provides information in his of her defence, the employer may conclude that the employee committed the misconduct complained of and dismiss the employee.

What happens when an employment investigation is conducted simultaneously with a criminal investigation? The Employment Court considered this issue in a recent case.

On 1 March each year, schools ares required to file a return with the Ministry of Education recording the size of their roll for that year. The funding for each school is determined on the basis of the return that has been filed.

Wanganui City College employed Raymond Russell as a deputy principal. In 1997 and 1998, Mr Russell was responsible for filing the college’s return with the Ministry of Education.

In mid 1998, the Ministry of Education conducted a routine audit of the college’s returns for 1997 and 1998. It uncovered alleged irregularities in the returns and laid a complaint with the Police that Mr Russell had dishonestly altered the school role to get increased funding. The Police began investigating the matter.

While the Police were investigating the Ministry’s complaint, the College suspended Mr Russell. It then sent him a list of 16 allegations to explain and a further 38 questions to answer.

After receiving this list, Mr Russell applied to the Employment Court for an interim injunction reinstating him to full employment, and restraining the College from proceeding with its disciplinary inquiry until the Police had decided whether or not to lay any criminal charges against him.

Mr Russell argued that under the New Zealand Bill of Rights Act he had the right to silence. If he responded to the allegations and answered the questions on the list sent to him by the College, his responses and answers could be used against him in any criminal prosecution brought by the Police. The College was in effect requiring him to forgo his right to silence.

After careful consideration, the Employment Court agreed with Mr Russell. It ordered the College to reinstate him to active duty and to refrain from proceeding with its disciplinary inquiry until after the police have decided whether or not to bring a criminal prosecution against him.

But, the Court noted that ordinarily an employer has the right to conduct a disciplinary investigation and that it was a "grave matter" for the Court to interfere with that right. It would only do so where it was "justifi[ed] on proper grounds".

Because of this, the Court ordered that the its interim injunction be reviewed regularly so that it could be kept up to date regarding the situation and , in particular, how the Police investigation was progressing.