New Zealand: Misconduct outside the workplace - 5 takeaways from the Israel Folau case, from a NZ perspective

  1. This is what we're about - employers can set organisational values and enforce them, acting fairly and reasonably. It is not normally a satisfactory response for an employee to say that their conduct or statements – at odds with their employer's values - are permissible or protected based on, say, religious grounds or freedom of speech. It is possible (and I'd venture not uncommon) for an employee to hold personal views (even strongly or deeply held beliefs) that don't necessarily align with those of their employer while, at the same time, not acting in a way that contradicts or undermines their employer's stated values.
  2. I was off duty - the line between an employee's personal/private life and their work is not always an easy one to draw. Misconduct which is 'outside' the workplace can still be a legitimate employment issue and, potentially, form the basis for a workplace investigation. In New Zealand, there has to be a sufficient connection between the misconduct and the employee's employment, to attract scrutiny. For instance, that connection might be that the conduct risks damaging the reputation of the employer's business or it may undermine the employer's essential trust and confidence in the employee to do their job.
  3. The small print - have good policies and socialise them. Social media posts won't always be regarded as private and so immune from an employment process. Again, there needs to be a clear nexus between the conduct and the employee's employment or job. Employers should have a social media policy as part of their suite of policies, and reference these in their employment agreements. Train managers and give them confidence around the issue.
  4. The bigger picture - when running a disciplinary process, the employer has to act in a fair and reasonable manner towards the employee, and this includes considering 'all of the relevant circumstances'. Those circumstances include any features of the case that might mitigate, or aggravate, the seriousness of the breach. While fairness to the employee being investigated is obviously critical, an employer can (and should in my view) also have regard to its obligations to its wider workforce and the business generally. That is, upholding and being seen to uphold the values that the employer has set for itself.
  5. The result needs to fit the wrong - the fact that the employer can show a serious breach does not always mean that a dismissal will be justified. To justify a dismissal, the misconduct needs to seriously undermine the relationship of trust and confidence between the parties, viewed from the perspective of a 'fair and reasonable employer' in the employer's shoes. The fact or absence of a previous warning and the attitude of the employee to the allegation can be influential in the outcome. Care needs to be taken in recording a warning – what's occurred, the employer's expectations into the future and what will happen if the conduct is repeated. Remove any wriggle room or uncertainty around the expectations. An acceptance of misconduct by the employee, when warranted, can go a long way to avoiding a dismissal. As part of the necessary consideration of the relevant circumstances, a genuine acknowledgement of wrongdoing by the employee or, at the very least, an acknowledgement by the employee of their share of responsibility, can often be the difference between a dismissal or a warning.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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