Waikato Business News November/December 2019

28 WAIKATO BUSINESS NEWS November/December 2019
End of year parties:
the good, the bad
and the naughty
EMPLOYMENT LAW
> BY ERIN BURKE
Employment lawyer and director at Practica Legal
Email: erin@practicalegal.co.nz phone: 027 459 3375
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 afterhours
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.
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