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Home / police allegations / Rickards,
Shipton, Schollum vs Jane Doe Page 7 - Further Reaction to
Not Guilty Verdict |
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Now that he has been cleared,
Clint Rickards wants his old job back Suspended Assistant Police Commissioner Clint Rickards has made it
plain he wants to return to his job as
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 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 "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."
Maria Berryman, 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 "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'." |
