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]
