Flushing Away Trust – A Messy Case of Serious Misconduct


An employee can undertake various actions that fall under the category of “serious misconduct.” A recent illustration of this arises in the case of Marsters v Allied Investments. In this instance, a security guard functioning as a patrol security officer, was discovered to have defecated outdoors at a primary school while on duty, resulting in his subsequent dismissal from the role. 



Allied Security hired a man as a security guard in October 2021. Initially, he was stationed at mostly Countdown stores, but he was later transferred to the mobile unit because of his mask-wearing restrictions. The man gained a reputation for not responding to or returning calls and for rejecting shifts by citing illness. 


The Incident  

The incident in question occurred on Saturday, March 26th, when the security guard visited a primary school as part of his usual patrol. This included walking around and checking that doors were locked and that nothing suspicious was happening. The guard said that there were times during the patrol when he would visit places that were not part of his job description. This was due to him having a “feeling in his bones” that if someone was going to try to steal something from the school, then the equipment shed would be the place to take it from.   


On Monday, March 28, Allied Security received a complaint from the deputy principal of the primary school that they had found human faeces in a basin between the two sheds. CCTV footage showed that the security guard was the only person who had entered the vicinity of the sheds between Friday afternoon, the last time when someone last was at the sheds and the time when the principal found the excrement.   


The guard denied being the one who defecated at that particular location citing a range of reasons. Following an investigation by Allied Security, the employer concluded that it was more likely than not that he was responsible for the incident involving the faeces. Following several meetings with the security guard, Allied Security made the decision to terminate his employment due to significant misconduct which the Court upheld. 


What is Serious Misconduct? 

Serious misconduct is conduct which has broken the confidence and trust between an employer and employee. 

When dealing with “serious misconduct” there are four requirements to consider according to 103A of the Employment Relations Act 2000: 

  1. whether the employer has sufficiently investigated the allegations against the employee; 
  2. raised the concerns that the employer had with the employee; 
  3. gave the employee a reasonable opportunity to respond to the employer’s concerns; 
  4. genuinely considered the employee’s explanation in relation to the allegations against the employee. 


Key Takeaways  

When an employee commits actions that qualify as “serious misconduct,” the employer often has the outcome available to them to terminate their position if it disrupts the foundation of trust and confidence. However, it’s important for employers to follow up on incidents and properly investigate them before taking significant action. 


If you believe that one of your employees has committed serious misconduct, or if you are an employee facing accusations of serious misconduct, please don’t hesitate to contact the Watermark Employment Law team. We are happy to assist you.