Kelly Thompson, Solicitor at Anderson Lloyd, shares her insight about an employee’s behaviour outside the workplace.
Yes, an employee’s conduct outside the workplace can give rise to disciplinary action in some circumstances, but not all. There must be a link between the misconduct and the work environment.
Establishing whether that link exists is not always straightforward, especially because the way we work has changed significantly over the last 3 years, let alone the last 10 years. There is no longer a nice clean delineation between work life and personal life. Social media has made that delineation even blurrier, as it has the ability to make problematic behaviour visible by the whole world. People’s conduct and opinions viewed online can now reach far wider audiences, meaning the potential reputational damage to an employer is greater than ever before.
Once an employer is notified of a complaint/ incident, they must first turn their mind to whether it is an employment issue.
The Court of Appeal in Smith v Christchurch Press Company said:[1]
“… there must be a clear relationship between the conduct and the employment. It is not so much a question of where the conduct occurs but rather its impact or potential impact on the employer’s business, whether that is because the business may be damaged in some way: because the conduct is incompatible with the proper discharge of the employees’ duties; because it impacts upon the employer’s obligations to other employees or for any other reason it undermines the trust and confidence necessary between employer and employee.”
Broadly speaking, some common overlapping areas between an employee’s private life and work life can include when the conduct impacts on work performance, impacts the business’ reputation, or where an employee discloses confidential information.
Activity on social media can also be cause for disciplinary action. The problematic content could be related to the workplace, such as commenting negatively about the workplace online, or a ‘sick’ employee posting that they are out doing a recreational activity. Alternatively, it could be content that is unrelated to the workplace/ employer, but is objectionable and it is clear who the employees’ employer is. What is considered ‘objectionable’ can in itself be unclear, and will not necessarily be the same in every case.
In deciding whether a link exists, an employer must consider each case on its own facts, taking into account all of the context and circumstances. If a link is established, and the employer proceeds with an investigation, as with any employment process, they must act in good faith and within the test of justification (as set out in s 103A Employment Relations Act 2000).
Case examples
Hallwright v Forsyth Barr Ltd
Mr Hallwright was involved in a ‘road rage’ incident where he, albeit accidentally, drove over another motorist causing him serious injury. He was convicted of causing grievous bodily harm with reckless disregard.
The actions were not carried out in the course of Mr Hallwright’s employment, and the nature of his employment, nor his employer were identifiable. However, the information was eventually publicised in the course of significant media attention that followed the incident.
Forsyth Barr initiated a disciplinary process into whether Mr Hallwright’s conduct had brought it into disrepute. It raised a number of factors, including:
- The extensive media coverage that described Mr Hallwright as an “investment banker” or a “senior employee” of Forsyth Barr.
- Forsyth Barr had received queries about how it could employ someone capable of acting as Mr Hallwright had.
- It was an integral component of Mr Hallwright’s job that he be available to make public statements and provide commentary to the media.
- The integrity and probity of senior employees in the investment industry is of enormous importance, with public confidence being critical to success in the marketplace.
- Forsyth Barr’s reputation had been damaged, and Mr Hallwright’s name and that of Forsyth Barr had been inextricably linked.
Forsyth Barr ultimately dismissed Mr Hallwright for serious misconduct in that his actions amounted to conduct bringing his employer into disrepute, and breached an obligation in his employment agreement not to engage in activity that was likely to compromise his ability to carry out his duties.
Mr Hallwright challenged his dismissal in the Employment Relations Authority (ERA), however it dismissed his claim.[2] It considered Forsyth Barr acted in a procedurally fair manner, and that there were reasonable grounds to dismiss Mr Hallwright for serious misconduct.
Mr Hallwright then challenged the ERA determination in the Employment Court.[3] The Employment Court concluded it was open to Forsyth Barr to conclude Mr Hallwright had committed serious misconduct and the decision to dismiss and how Forsyth Barr acted was what a fair and reasonable employer could have done in all of the circumstances.[4] Mr Hallwright’s claim was dismissed.
A v Chief Executive Child Youth and Family
A senior manager (A) of Child Youth and Family (CYF) was witnessed slapping his son across the mouth following a club squash match. Complaints were made to the police and to CYF’s.
CYF’s initiated a disciplinary process and ultimately dismissed A. He challenged his dismissal in the ERA. The ERA however found:[5]
- The conclusion that A’s actions were inconsistent with the values embraced by CYF, and thus prevented him from leading by example, was a reasonable conclusion in all the circumstances.
- The conclusion that A’s behaviour constituted serious misconduct was a finding that a fair and reasonable employer would have reached given all the circumstances at the relevant time.
- The conclusion that A’s conduct had brought CYF into disrepute was a valid one.
- The conclusion CYF no longer had the requisite trust and confidence in A as a senior manager was a finding a fair and reasonable employer would have reached.
Dismissal was found to be the appropriate outcome, and A’s claim was dismissed.
Scott v Department of Corrections
Ms Scott was a Corrections Officer who posted a video on her TikTok account in her uniform, holding up handcuffs and mouthing the words “ima take your man if I want to“, with the hashtags #thoselooksthoug, #relaxgirlsitsmyjob, #happyinarelationship and #fyp. Text was inserted above the video with the words “when partners come to see the men…”
Corrections received notification of the video from employees and a member of the public whose partner was in prison.
The Acting Prison Director said the ramifications of the video were immediate. She also found another video in which Ms Scott could be seen mouthing the words “I’m a savage, choke im, shoot im, stab im… what? That’s how it goes” with matching hand gestures. She was not in uniform but is identifiable as a Corrections Officer because other videos show her in uniform.
Corrections conducted an employment investigation and dismissed Ms Scott for serious misconduct. The reasons included that the posting with the text “when partners come in to see their men…” displayed careless and unsafe behaviour that placed Ms Scott and others at risk; that Ms Scott failed to understand the seriousness or the potential and actual ramifications of the posts; and that the videos may have brought Corrections into disrepute.
Ms Scott challenged her dismissal in the ERA, however it dismissed her claim, stating:[6]
“… despite Ms Scott’s intention, and her experience and commitment to the job of a Corrections Officer, she neglected to recognise the inappropriateness of posts she was creating and uploading to TikTok and the likely loss of control of material in an electronic environment. With the consequent actual and potential for reputational damage and the safety risks created by the content and nature of the posts, Corrections had acted as a fair and reasonable employer in all the circumstances.”
Dealing with an employees’ conduct outside of work can be challenging. The context and circumstances will be relevant in determining whether it is an employment issue. An employers’ usual requirements of procedural fairness will apply to any investigation and disciplinary process. Any decision made should be informed by contractual provisions and/ or relevant policies; a proportionate response; and one a fair and reasonable employer could have come to in all of the circumstances. We strongly suggest employers obtain legal advice when carrying out one of these processes.
Kelly Thompson is a solicitor in the Litigation and Employment team specialising in employment law and is based at Dunedin office. Kelly studied at University of Otago, and graduated in 2021 with a Bachelor of Laws with Honours. She joined Anderson Lloyd in November 2021 and was admitted to the bar in 2022. Kelly is a member of the Employment Law Committee and Otago Women Lawyers’ Society. Connect with Kelly via LinkedIn.
[1] CA292/99 at [25].
[2] [2013] NZERA Auckland 79.
[3] [2013] NZEmpC 202.
[4] At [99].
[5] [2011] NZERA Wellington 125 at [87]-[93].
[6] [2022] NZERA 508 at [69].
