Dismissal for Conduct Outside of Work in New Zealand
In New Zealand employment law, an employee's conduct outside of work can, in certain circumstances, lead to disciplinary action, including dismissal. The fundamental principle governing employment relationships is the duty of good faith (the obligation for both employers and employees to be active and constructive in establishing and maintaining a productive employment relationship) [Source: Employment Relations Act 2000, s 4]. Actions taken outside of work may be considered a breach of this duty or affect the employment relationship.
The Test for Justification
For any dismissal to be lawful in New Zealand, it must be justified. This means that an employer must show that their actions, and how they acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred [Source: Employment Relations Act 2000, s 103A]. When considering out-of-work conduct, the courts and the Employment Relations Authority will assess several factors:
- Nexus to Employment: There must be a sufficient connection or link between the employee's out-of-work conduct and their employment. This might include whether the conduct affects the employee's ability to perform their job or impacts their colleagues [Source: Employment Relations Act 2000, s 103A].
- Impact on the Employer's Business or Reputation: If the employee's conduct, even if private, causes material damage to the employer's reputation, client relationships, or business interests, it may be grounds for dismissal [Source: Employment Relations Act 2000, s 103A].
- Breach of Trust and Confidence: Certain conduct can fundamentally undermine the trust and confidence an employer has in an employee, particularly for roles requiring a high degree of integrity or public trust [Source: Employment Relations Act 2000, s 103A].
- Employment Agreement or Workplace Policies: An employment agreement or workplace policies (such as social media policies) may contain provisions relating to employee conduct outside of work. A breach of these terms could be considered, provided they are reasonable and have been communicated to the employee [Source: Employment Relations Act 2000, s 103A].
- Nature and Seriousness of the Conduct: The severity of the out-of-work conduct is a key consideration. For example, criminal behaviour, especially if related to the nature of the job, is more likely to justify dismissal than minor infractions [Source: Employment Relations Act 2000, s 103A].
Procedural Fairness
Regardless of the nature of the conduct, an employer must always follow a fair process before deciding on dismissal. This includes:
- Informing the Employee: The employee must be fully informed of the allegations or concerns regarding their out-of-work conduct [Source: Employment Relations Act 2000, s 103A].
- Opportunity to Respond: The employee must be given a genuine opportunity to explain their actions and provide their side of the story [Source: Employment Relations Act 2000, s 103A].
- Consideration of Response: The employer must genuinely consider the employee's explanation before making a decision [Source: Employment Relations Act 2000, s 103A].
- Right to a Support Person: Employees have the right to have a support person present at any meeting where disciplinary action or dismissal is discussed [Source: Employment Relations Act 2000, s 4].
Failure to follow a fair process can render an otherwise justified dismissal unjustified (a dismissal where the employer has not met the justification test under the Employment Relations Act 2000, s 103A), even if the employer had substantive reasons for dismissal [Source: Employment Relations Act 2000, s 103A].
Privacy Considerations
While an employer may be able to consider an employee's out-of-work conduct, the collection and use of personal information about an employee is subject to the principles of the Privacy Act 2020. This includes information obtained from public sources, such as social media. Employers must ensure that any collection or use of such information is lawful and for a legitimate purpose connected to the employment relationship [Source: Privacy Act 2020, Principle 1, Principle 10].
Personal Grievances
If an employee believes their dismissal for out-of-work conduct was unjustified, they may raise a personal grievance (a complaint an employee can raise against their employer for certain types of alleged harm or injustice, such as unjustified dismissal) [Source: Employment Relations Act 2000, s 103]. An unjustified dismissal is a specific ground for raising a personal grievance [Source: Employment Relations Act 2000, s 103(1)(a)].
When to Seek Independent Legal Advice
Understanding the specifics of an employment situation, particularly regarding dismissal for out-of-work conduct, can be complex. Employers requiring guidance on fair process and substantive justification, or employees believing their dismissal was unjustified, should seek independent legal advice. Information and assistance can be obtained from official bodies like Employment New Zealand, or by contacting a solicitor or Community Law Centres for free advice and support.