There really is no month in the working calendar quite like December!
For many the summer holidays are just around the corner and there is an intoxicating atmosphere (literally) of bonhomie, looming deadlines, camaraderie and of course…the office Christmas party.
While employees attempt to juggle family and work obligations in the countdown to the end-of-year closedown, the lengthening days still seem too short to complete everything before the holidays, and the joy of approaching downtime is mixed with the stress and tension of wrapping everything up.
The end-of-year work do has become something of a tradition in New Zealand workplaces and offers employers a great opportunity to thank their staff for their hard work throughout the year.
Unfortunately, it also provides increased opportunities for an unhealthy mix of alcohol and workplace tensions that can lead to headaches lasting long after the hangover has worn off.
From rowdy verbal or physical altercations to inappropriate sexual advances and drink-driving convictions, the potential for misconduct significantly increases in the month of December and employers are left wondering, what, if anything, can be done about instances of misconduct that occur after hours and outside the workplace.
In New Zealand employment law, there is a general presumption that an employee’s private life is just that, private. There are times, however, where conduct in an employee’s private life can adversely affect their employment.
Guidance on the issue of outside work misconduct comes from the 2000 Court of Appeal case of Smith v Christchurch Press Company Limited. There, a male employee invited a female employee to lunch. He failed to inform her that the venue was his house and the menu involved unwanted sexual advances of a fairly serious nature. The female employee made a complaint to her employer, and the male employee was subsequently dismissed for serious misconduct.
Although the incident technically was outside of work hours (being the lunch break) and the venue occurred at a private residence, the Court held that there were limited circumstances where the usual restrictions on intruding into an employee’s private life can be set aside if there is a clear relationship between the conduct and the employee’s employment. In this particular case, it was the detrimental impact on the employees’ working relationship that provided the nexus.
In other words, it is not so much where or when the misconduct occurred, rather the impact or potential impact the conduct has on the employer.
Fast forward to 2005 and the case of Kemp v Westpac Banking Corporation saw three employees dismissed for smoking a joint at the office Christmas party. An additional complication arose when it was discovered that a senior manager had been present and had not only condoned the drug use, but helpfully provided the lighter. This manager was only given a final written warning. The Employment Relations Authority held that this constituted disparity of treatment, and the three dismissed employees were reinstated and awarded $3000-$4000 in compensation to boot.
In the well-publicised 2013 case of Hallwright v Forsyth Barr, investment analyst Guy Hallwright was involved in a serious road rage incident and was convicted for causing grievous bodily harm with reckless disregard when he intentionally ran over another motorist, following an altercation at a traffic light. Following his conviction, Hallwright was dismissed from his $250,000 per year job and the dismissal was upheld as justifiable by the Employment Court.
Although the incident occurred after hours, the Court accepted that the seriousness of the conduct, and the continual linking of Forsyth Barr’s name to the case in media reports, had the potential to impact his employer.
Clearly, an employee’s after-hours conduct can be subject to an employer’s disciplinary processes if there is some nexus between the conduct and an impact (potential or actual) on the employer. The onus will be on the employer to show what that nexus is. The following are some simple, yet effective, guidelines to dealing with, or preventing, after-hours misconduct:
Give careful consideration as to whether the after-hours conduct really does have any potential impact on the employer or the employee’s ability to do their job. If you are struggling to come up with a justifiable link, you may be overstepping the boundary;
Ensure any letter inviting an employee to a disciplinary meeting specifies why the employer feels the out-of-work conduct has become an employment issue;
Strengthen individual employment agreements by adding clauses which state that after-hours conduct may be subject to disciplinary action if it potentially impacts on an employer’s reputation, employee relationships or the employee’s ability to perform their role;
When inviting employees to a work function, let them know that a relaxed yet professional standard of conduct is still expected and required, and that by accepting the invitation, the employee accepts these terms of attendance;
The usual host responsibilities apply (particularly since the Health and Safety at Work Act 2015 commenced in early 2016). Ensure there is adequate food provided when serving alcohol and consider restricting alcohol consumption in some way (such as each employee gets tickets for two or three free drinks, then usual bar charges apply after that); and
Ask employees to ensure they have organised appropriate transport in advance or consider providing transportation where possible.