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Hearing the stories of abuse victims

21 November 2018

In February the Government announced a royal commission of inquiry into historical abuse and neglect of individuals in state care. Last week the inquiry was extended to cover abuse and neglect in faith-based institutions.

During consultation on the terms of reference, the commission received over 400 submissions. Many sought the addition of faith-based institutions to the inquiry. The Government has listened to the people and is to be commended.

Former governor-general Sir Anand Satyanand is chairman of the inquiry and says it will be the biggest royal commission ever undertaken in New Zealand.

The inquiry will go beyond Australia's Royal Commission into Institutional Responses to Child Sexual Abuse and the United Kingdom's Independent Inquiry into Child Sexual Abuse. The New Zealand commission is not limited to sexual abuse but includes emotional abuse, physical abuse, and neglect. In this sense it is unique.

The commission will provide an opportunity for victims to come forward and speak to a wise and respected panel of commissioners who bring their own integrity and independence to the process.

Previously, survivors of abuse are likely to have felt dissatisfied with any hearing or investigation by the very institutions that failed to protect them from abuse in the first place. It is probably difficult for them to believe they received an independent hearing from the institutions in which they suffered abuse.

When New Zealand implemented the accident compensation scheme, the majority of legal solutions that existed at the time for physical or sexual abuse were removed.

The 'no fault' scheme provided by the Accident Compensation Corporation (ACC) is generally considered better than old litigation tools. ACC has a sensitive claims unit that provides counselling, therapy, and other limited remedies for those who have been abused.

However, under ACC the perpetrator is not held responsible, other than through criminal charges. Perhaps this is why some people who have suffered abuse have taken proceedings in the civil courts despite the limited remedies now available.

The royal commission is putting considerable emphasis on providing support services to the survivors who testify before them. Hopefully this support, the chance to have their story heard and believed, and the findings of the final report will enable these survivors to move on with their lives.

Employment touches most areas of human behaviour. Certainly, sexual and physical abuse can and do take place in employment.

Abhorrent behaviour like this will generally also be serious misconduct that damages or destroys the relationship of trust and confidence between employer and employee. Trust and confidence is essential for an employment relationship.

In most cases of abuse within the workplace dismissal will be inevitable, even if the misconduct does not amount to criminal offending.

Take the case of A Farmer v A Worker in which the Employment Court found that allegations of sexual misconduct made by the employer's son against the employee had "fundamentally changed" the relationship between employer and employee, making continued employment untenable, despite a police investigation finding no evidence of sexual abuse.

Child abuse outside of the workplace which brings the employer into disrepute may also warrant dismissal, as was the case in A v Child Youth and Family. The Employment Relations Authority upheld the dismissal of a senior employee of Child, Youth and Family for hitting his child at a sports venue on the basis that his conduct prevented him from leading by example.

In some other situations dismissal may not follow. In circumstances where dismissal is technically possible, the employer may impose a lighter sanction. It is up to the employer. Realistically, dismissal will almost certainly follow serious behaviour.

The Government is to be commended for establishing the royal commission on abuse and for including faith-based institutions in its ambit. It will seek to understand, acknowledge, and respond to the harm caused to individuals, families, whānau, hapū, iwi, and communities and ensure lessons are learned for the future.

Hopefully the increased focus on abuse will also encourage any employers who still do not have policies on workplace conduct, including abuse, to put processes and procedures in place to protect people.

It is also in the interests of the business to have policies in place, and enforce them, so that the business is prepared to deal with situations that arise and is less likely to be liable in civil or criminal litigation.

Physical and sexual abuse is a significant issue in New Zealand. Survivors of sexual abuse tied ribbons to the fence of Saint Mary of the Angels in Wellington. No doubt this reflects their hurt and anger and is a way for them to express that.

Providing a royal commission to respectfully listen to their stories provides a different and perhaps even better opportunity that I think is rather precious.

Hopefully suffering from the past can be alleviation and the lessons learned enable us how to create a more caring society without abuse.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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