Is behaviour outside working hours solely a private matter? Does an employer have any business passing judgement on private conduct?</p

Well sometimes, yes. Conduct outside the workplace can impact on the employment relationship by bringing the employer into disrepute. Sometimes that impact can be serious enough to justify dismissal [1].

This issue was discussed again in the case of X v. Chief Executive of the Department of Corrections [2].

Mr. X had engaged in behavior such that he had been issued with a trespass notice, a harassment notice and a police safety order. He had been arrested and found to have breached the safety order. He made an unfortunate post on Facebook. His behavior was directed at two people, both of whom were also employees of the Department.

The Court found that it wasn’t essential to demonstrate adverse publicity had actually occurred. Rather it was the risk of disrepute that was significant.

In this case, Mr X’s behaviour brought his private life firmly into the workplace. It was not necessary for the disrepute referred to in the Code to apply only where there is, in fact, adverse publicity. The purpose of the Code was to attempt to make sure that the Department did not face the risk of being brought into disrepute. A neutral, objective fair-minded and independent observer would conclude, I consider, Mr X’s behaviour did risk bringing it into disrepute [3].

The objective assessment test  required by Section 103A of the Act had been satisfied.

In this case the evidence against Mr X was overwhelming and largely uncontested. The strongest point in his favour was that he had been diagnosed with a medical condition which may have had a bearing on his behaviour between October and December 2014. Mr Harrison’s review of that information was robust and he reached conclusions which were open to him. Relying on the medical opinions it was open to the Department, objectively, to conclude that despite his condition Mr X knew what he was doing in his behaviour towards Ms Z, and in causing Ms Y to seek a safety order and in breaching it.

Viewed objectively a fair and reasonable employer in the Department’s position could con1]clude that the complaint was justified, its Code of Conduct had been breached and that it had lost trust and confidence in Mr X. The Department has satisfied the test in s 103A of the Act. [4].

[1] Hallwright v. Forsyth Barr Ltd. [2013] NZ EmpC, 202, [2013] ERNZ, 533.

[2] X v Chief Executive of the Department of Corrections [2018] NZEmpC 106

[3] At [75]

[4] At [132] and [133]

It was big, grey and right outside Invercargill Pak’n Save. Around its neck was a sign saying,

‘Don’t Be a Rat Mr Dobson.’

It was an inflatable rat and it was part of First Union’s protest. Invercargill Pak‘n Save (trading as Kaikorai Service Centre Limited) had declined to bargain with the Union over wage rates. They would bargain over other issues, but individual wage rates were something they wanted to keep private; to take ‘off-line’ and deal with on a one to one basis. In this way they hoped salaries could better tailored to the contribution of the employee.

Both sides to the dispute claimed a breach of good faith. The union because of the refusal to include wage rates in the collective agreement; the employer because of the rat (and also the banner reading ‘Pak’n Slave’)

So, who was in breach? The union with their floating rodent? Or the employer with their insistence on an agreement that didn’t mention money?

According to the Court [1], neither.

 

I consider there is nothing in the use of the inflatable rat and the sign justifying

Kaikorai’s concern. The combined image could not be described as mean‐spirited

or draw on negative connotations of a rat which Mr McPhail preferred to see in

his dislike of it. The sign did not cross the threshold where it could be said to be so

offensive or undermining that a breach occurred. The sign, by itself, could not

exert pressure, improper or otherwise, on Mr Dobson. The pleading was that he

was insulted, but no reasonable person in his position would have been insulted

by the inflatable rat, or the combination of the rat and sign [2].

 

Not only was protesting using an inflatable rat not a breach of good faith, it wasn’t even insulting.

Nor was it a breach to decline to include a wage scale within the agreement so long as the employer was responsive and communicative in bargaining. Kaikorai has shown its responsiveness by  providing a revised draft wage clause which moved closer to the union’s position. It had considered the union’s proposals and explained its reasons for rejecting them.

Further-

There is nothing in s 32 which requires good faith in bargaining to extend to the

inclusion of a wage scale in a collective agreement or, for that matter, any other

provision which might be proposed by one or other party to the bargaining … [3].

 

Since then, legislation has been passed which requires the parties to bargain over wages, so this aspect of the case would be decided differently today. Section 54 of the Employment Relations Act includes the following –

For the purposes of subsection (3)(a)(ii), a collective agreement contains the rates of wages or salary payable to employees bound by the agreement if it—

(iii) 1 or more methods of calculating the rates or minimum rates of wages or salary payable for certain work or types of work or to certain employees or types of employees; and

(b) indicates how the rate of wages or salary payable to an employee bound by the agreement may increase during the term of the agreement.

 

So far, no new legislation has been proposed about inflatable rats.

 

[1] Kaikorai Service Centre Limited v First Union Incorporated [2018] NZEmpC

[2] At [66]

[3] At [44]