Sunday, July 11th, 2010

Misconduct outside the work place

It is now well established that an employee can be disciplined, even dismissed, for misconduct which takes place outside of work hours and the workplace . However, disciplinary action can only be justified if there is some connection between the misconduct and employment.

This “connection” can be illustrated by reference to a number of cases.

It is noteworthy that in each of these cases, the employee was aware of the need to maintain an appropriate standard of conduct.

If your business is in any way sensitive to public opinion and your business interests may be hurt as a result of employee misconduct , it is important to ensure that the employee is knows that certain standards must be met.

Other misconduct may destroy the trust and confidence that an employer has in an employee .

There are a number of ways of ensuring that an employee is aware of the potential impact is non-employment activity.  The staff manual may specify a code of conduct. Equally, the employment agreements may list, as serious misconduct, any conduct that brings the reputation of the employer into disrepute.

In Whitney v New Zealand Post Ltd AA 308 A/09, the applicant was employed as a postie.  She was required to sort and deliver mail containing the usual variety of items such as cash, credit cards, gift vouchers, drivers licences and other items of tangible value as well as general mail .

She had been dismissed from her previous position because she had admitted theft from her previous employer.  The police did not however bring charges for quite some time, by which time Whitney had secured the position at New Zealand Post.  She was convicted of theft.

This was not her first problem with the legal system. Some 10 years earlier she had worked for New Zealand Post.  She had been dismissed because she had been charged with receiving wages from NZ post while, at the same time, receiving a domestic purposes benefit. She was therefore aware of the implications of inappropriate behaviour.

NZ Post concluded that it no longer had trust and confidence in her and dismissed her.

When dealing with her claim for unjustified dismissal Employment Relations Authority accepted that she held a position where a high level of trust, honesty and integrity was required.  Although there were no difficulties with the manner in which she performed her duties, the authority found that her dismissal was justified.

Compare this case with Kasey Pou v Alliance Group Limited CA 96/08 where a Quality Assurance Officer employed at meat works had been convicted of theft and receiving outside of her employment.

The incidents in fact occurred before she was employed by Alliance.  When she was interviewed, she was not asked to disclose any convictions.

She was held to be unjustifiably dismissed because the dishonesty offence did not affect her ability to perform the role for which she was employed.

On the other hand, in Murray v A-G (2002) 1ERNZ 184, Mr & Mrs Murray , both employees of the IRD, were convicted of benefit fraud. They were customer service officers at the IRD.  Their dismissals were upheld.

In another case, Dryden v The Radio Network of New Zealand Limited AA 9/09, a radio breakfast host was dismissed as a result of ill mannered behaviour at a public meeting and direct disobedience of his employer’s instructions.

The radio station maintained that his behaviour was unprofessional and inappropriate and brought the radio station into disrepute.

Although he was not representing the station at the meeting, he was wearing a jacket with the radio station’s logo.  He was also a public figure who lived in a small community and was strongly associated with the radio station.

The employment relations authority was satisfied that his conduct was injurious to the interests of his employer in the sense that it had the potential to impact on the employer’s business.


Misconduct outside working hours may justify disciplinary action, even dismissal.

Care must be taken because an employer has the burden of showing that the disciplinary action was justified — particularly in the case of a dismissal.

Although the cases referred to involved misconduct preceding employment, the general requirement is that the misconduct must occur following employment.  Those cases where misconduct occurred before employment were successfully defended by the employers by persuading the Employment Court to invoke jurisdiction in equity and conscience.

Any disciplinary action should be carefully supervised or at least reviewed — preferably by an independent consultant.

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