The Advocate | Issue 375 | July 2026

Recently, in Tawhiwhirangi v The Chief Executive of the Department of Corrections  [2026] NZERA 402, the Employment Relations Authority considered the case of a corrections officer who successfully defended criminal charges for assaulting a prisoner, but was later dismissed by his employer for his conduct in relation to the same incident. 

On 28 April 2021, Tawhiwhirangi, along with two other officers, was processing a prisoner who had arrived at the prison. The prisoner later complained to Police that Tawhiwhirangi had “karate chopped ” her throat. The Prison Director reviewed CCTV footage and relevant documentation (e.g. incident reports and briefings about the alleged incident). Upon doing so, she said she was “alarmed ” by what she saw and found that there was an absence of any reporting of the incident. 

Corrections commenced an investigation into the incident, and on 14 May 2021, wrote to Tawhiwhirangi informing him of the complaint. The letter also advised Tawhiwhirangi that the matter was being referred to Police, and proposed that he be suspended from work. Specifically, it was alleged that Tawhiwhirangi   “may have used unjustified and/or unreasonable force on a prisoner ” and “ failed to report the incident in accordance with the Prison Operations Manual ”. 

Following a meeting with Tawhiwhirangi, Corrections determined that suspension was appropriate on 19 May 2021.

 

Tawhiwhirangi’s representative advised Corrections that he would not be participating in an employment investigation until the outcome of any police investigation was known. An external investigator was appointed, and completed as much of the investigation as they could, given Tawhiwhirangi’s decision not to participate. Tawhiwhirangi would remain suspended for this time. 

On 25 May 2023, over two years after the alleged incident, the District Court issued its decision as to the charge of common assault under the Crimes Act 1961.

The following day, on 26 May 2023, Corrections wrote to Tawhiwhirangi confirming it would recommence its investigation. 

Corrections reached its preliminary view that the allegations were upheld and amounted to serious misconduct. 

On 19 July 2023, Tawhiwhirangi was dismissed without notice for:

• Using unjustified and/or unreasonable force on a prisoner; and 
• Failing to report the incident in accordance with the Prison Operations Manual; and 
• The above also constituted a breach of the Code of Conduct requirements to be accountable and make a difference. 

The District Court Decision  

On 25 May 2023, over two years after the alleged incident, the District Court issued its decision as to the charge of common assault under the Crimes Act 1961. In the criminal proceedings, Tawhiwhirangi did not deny that he had intentionally applied force to the prisoner, but said he did it in self-defence. In particular, that the prisoner was spitting at him, and to prevent her from spitting at him again, he reached out with his left hand thrusting towards her throat. 

Under the Corrections Act 2004, a prison officer is authorised to use force on prisoners, but they “may not use more physical force than is reasonably necessary in the circumstances”. For example, they may be authorised to use force in the situation of self-defence, in the defence of another person, or to protect the prisoner from injury. 

The District Court determined, given the evidence about spitting, and in the context of the COVID-19 era, Tawhiwhirangi’s reaction “could not be considered to be disproportionate to what he thought was about to happen in the circumstances”. Ultimately, the District Court found Tawhiwhirangi’s actions justified in using force. 

The Authority’s Decision 

The Authority then turned to its own assessment. In particular, whether Tawhiwhirangi was unjustifiably dismissed from his employment and if so, what remedies should be awarded. 

The key issue the Authority found with Corrections’ decision was that it had essentially re-litigated issues that had already been decided by the District Court. In particular, the Authority noted: 

“The District Court findings of fact and the conclusion the force used was justified and lawful placed limitations on Corrections. It would be hard for Corrections to have been acting as a fair and reasonable employer if it reached conclusions Mr Tawhiwhirangi was acting unlawfully when he applied force to [the prisoner] given the District Court findings. This is particularly so when it said it was conducting a materially distinct employment investigation but focused on the application of force in the moment and did revisit the District Court findings.” 

With respect to the allegation of a failure to follow policy, the Authority found Corrections had failed to clearly identify and assess policy breaches independently of the use-of-force issue. In particular, it had not separated its findings from the use-of-force issue from the breaches of policy issues, and considered whether those individual concerns amounted to serious misconduct. 

Finally, the decision was procedurally flawed in that there was a possible bias, and Corrections had considered matters which had not been put to Tawhiwhirangi as allegations. 

The Authority found that the dismissal was unjustified and following a reduction for contribution of 15%, awarded Tawhiwhirangi $17,000 under section 123(1)(c)(i) of the Employment Relations Act 2000 and 3 months lost wages at $19,882.50. 

The Authority declined to order reinstatement due to the length of time Tawhiwhirangi had been out of his job at Corrections, being approximately five years. There was also evidence of changes in practice in the workplace operating strategy and policies, particularly concerning trauma-informed care for women prisoners. There also remained concerns around Tawhiwhirangi’s failure to report the incident, resulting in concerns there could be an impact on prisoners but also the trust and confidence in the employment relationship. 

This case is a useful reminder of the impact that criminal proceedings running alongside an employment process can have. In particular, an employer must consider criminal court findings on the same facts without strong justification. There will also be implications on an employment process where an employee decides to invoke their “right to silence” so that they do not prejudice themselves in any criminal proceedings.