Employment
Criminal Charges and Employment in New Zealand: What Employers Should Do
This week, news emerged that a Ministry of Justice employee remained on a taxpayer-funded salary for approximately five years after being arrested in connection with a major organised crime investigation, remaining employed until he later pleaded guilty to money laundering and his employment was terminated. The case has attracted significant public and political scrutiny, with questions being asked about how such a situation could continue for so long.
The public reaction is understandable.
However, beneath the headlines lies a difficult issue that many employers face:
What should an organisation do when an employee is arrested, charged, investigated, or becomes the subject of serious allegations while still employed?
The answer is often more complicated than either side of the debate suggests.
Can an Employer Discipline an Employee Before Criminal Proceedings End?
Yes.
In Aotearoa New Zealand, an employer does not usually have to wait for criminal proceedings to conclude before investigating concerns or making employment decisions. However, employers must act fairly, avoid assuming guilt, carefully assess workplace risks, and ensure any disciplinary process does not unfairly prejudice the employee’s legal rights.
Courts have recognised that employers have ongoing obligations to manage workplace safety, trust, operational risk and safeguarding concerns, even when criminal proceedings are continuing.
Arrest Does Not Equal Guilt
One of the most fundamental principles of our justice system is that an arrest, allegation, or criminal charge is not proof of wrongdoing.
Employers have obligations to protect staff, clients, service users, the public, and the reputation of their organisation. At the same time, they must avoid treating allegations as established facts and must provide employees with a fair process.
This creates an obvious tension:
- The public may expect immediate action.
- Colleagues may have concerns about safety or trust.
- Leaders may feel pressure to protect the organisation’s reputation.
- The employee remains entitled to natural justice.
Good policy exists to help organisations navigate these competing obligations.
Why Organisations Need a Clear Framework
We recently developed a policy specifically addressing concerns that arise during employment, including:
- arrests
- criminal charges
- convictions
- police investigations
- regulatory investigations
- professional conduct inquiries
- safeguarding concerns
- loss of licences, registrations, qualifications, or practising certificates.
The purpose is straightforward:
To ensure organisations can manage risk appropriately while still treating individuals fairly.
The Starting Point: Disclosure
Our policy places a clear obligation on workers to promptly disclose matters that may affect their suitability to perform their role.
This includes situations where they:
- are charged with or convicted of relevant criminal offences
- become subject to police, safeguarding, regulatory, or professional investigations
- lose a licence, registration, qualification, or practising certificate required for their role.
Clear disclosure requirements matter because organisations often become aware of concerns through rumours, media reports, or third parties. Establishing expectations from the outset creates clarity for both employees and managers.
Assess Risk, Don’t Jump to Conclusions
When concerns arise, employers should resist the temptation to immediately move into disciplinary mode.
Instead, the first step should be a structured assessment of:
- what information is actually available
- whether the matter involves an allegation, investigation, charge, or conviction
- how the issue relates to the employee’s role
- any safety, safeguarding, operational, trust, or reputational risks
- what further information is required.
Good decision-making is evidence-based and role-specific.
Managing Risk During an Investigation
Our policy expressly recognises that an allegation, arrest, charge, or investigation is not proof of misconduct.
At the same time, organisations may need to take temporary steps to manage risk while further information is gathered.
These measures might include:
- temporary redeployment
- adjusted duties
- increased supervision
- restrictions on certain responsibilities
- limits on access or decision-making authority
- temporary removal from specific activities
- suspension, where lawful, necessary, and proportionate.
The key principle is that these measures exist to manage risk—not to punish.
Employers Don’t Have to Press Pause
One of the biggest misconceptions in this area is that once criminal proceedings begin, the employer must simply wait until the courts have finished before making decisions.
New Zealand employment law does not generally require that.
The courts have recognised that there may be circumstances where an employee’s right against self-incrimination requires caution, particularly where criminal charges are imminent or underway. However, they have also recognised that employers retain legitimate rights and responsibilities to investigate concerns, manage workplace risk, and make employment decisions where appropriate. Cases such as Russell v Wanganui City College and Wackrow v Fonterra demonstrate that there is no automatic rule requiring employment processes to be put on hold until criminal proceedings conclude.
More recent decisions have reinforced the same principle. In a case involving Health New Zealand, the Employment Relations Authority declined to prevent an employer from continuing its investigation despite parallel criminal proceedings, provided appropriate safeguards were observed.
The real question is not whether an employer can act.
The question is whether any action is fair, proportionate, and based on the information available at the time.
The Importance of Ongoing Review
One of the strongest protections in our policy is the requirement to regularly review interim measures.
Interim measures are intended to manage risk while information is gathered. They should not become a holding pattern that simply continues year after year because nobody wants to make a decision.
Employment New Zealand describes suspension as a serious measure that should not be allowed to drag on unnecessarily and should reflect the time genuinely required to investigate or manage risk.
For that reason, our policy requires interim measures to be reviewed every four to eight weeks, or sooner if circumstances change.
Regular review forces organisations to consider:
- What has changed since the last assessment?
- What information has been obtained?
- What risks remain?
- What alternatives exist?
- Is the current response still justified?
Those questions are essential in matters that may take months or even years to resolve through external investigative or court processes.
Regular review is important because circumstances do not stand still. As time passes, organisations should be asking not only whether the original interim measure was justified, but whether it remains justified. What risk is being managed? What information has been obtained? What alternatives are available?
Put another way, employers should be able to explain the legitimate employment objective being achieved by continuing an interim arrangement. If temporary measures continue for months or years without meaningful reassessment, there is a risk that the organisation has stopped actively managing the issue and simply defaulted to maintaining the status quo.
Not Every Case Requires Dismissal
Too often, discussions about criminal allegations in employment settings become framed as a choice between doing nothing and dismissing someone.
In reality, there is a much broader range of options available.
Where concerns exist but continued employment remains possible, risk management plans can provide practical safeguards, including:
- enhanced supervision
- restrictions on authority
- removal of financial responsibilities
- limits on particular duties
- redeployment
- monitoring arrangements
- additional support mechanisms.
This allows organisations to respond proportionately to identified risks rather than defaulting to extreme positions.
Children, Rangatahi and Vulnerable People
Where concerns involve the safety of children, rangatahi, or vulnerable adults, additional safeguarding obligations arise.
In those situations, the organisation’s child protection and safeguarding obligations must be paramount, while still ensuring a fair process is followed for those involved.
Not every role carries the same level of risk. Organisations should carefully assess both the nature of the concern and the vulnerability of the people affected.
The Real Lesson from This Week’s Headlines
The Ministry of Justice case should not be viewed as a debate about whether every employee who is arrested should immediately lose their job. Nor should it be viewed as evidence that employers must simply wait for the criminal justice system to reach a final conclusion before taking action.
A better question is whether organisations have a framework for making and reviewing decisions throughout the life of the issue.
Criminal proceedings can take years. During that time, organisations still have responsibilities to manage risk, protect the people they serve, maintain public confidence, and treat employees fairly.
The lesson from this week’s headlines is not that employers should rush to dismiss people facing allegations or criminal charges.
Nor is it that employers should place difficult decisions in the “too hard” basket and wait indefinitely for the courts.
The real lesson is that organisations need a clear, defensible process for assessing risk, implementing safeguards, reviewing them regularly, and making employment decisions when sufficient information becomes available.