Actions Outside of Work
Are an employee’s actions outside of work a dismissible offence?
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Frequently Asked Questions.
What type of ‘out of work’ actions could result in disciplinary action?
The Employer’s Code of Conduct is likely to include a provision related to ‘actions and behaviour that cause, or have the potential to cause, harm to the employer or reputation.
Such actions and behaviour may include; unsocial behaviour while wearing clothing that identifies the employee with their employer, controversial or inappropriate social media posts where the employee is directly associated with the employer, the inappropriate actions of a ‘recognizable employee’ even where they are not directly aligned to the employer’s identity at the time.
Wearing company branded apparel can directly align the employee with the employer, even when their actions at the time are not aligned to the employee’s role or responsibilities with the employer.
An employee whose personal social media profile identifies themselves as an employee of a particular company can arguably cause damage to the name and reputation of the employer if the comments then made on the employee’s social media page are deemed to be offensive, controversial or against the values of the employer.
An individual who has a significant public profile because of their role with their employer may be deemed to have breached the Code of Conduct purely on the basis of their ‘public identity’ with the employer.
The Employer must, however, be able to demonstrate the ‘link’ between the employees’ actions and the actual or potential damage to the employer’s brand or reputation in order to support the disciplinary action.
What constitutes impairing the trust and confidence of the employer?
Conduct that would bring the employer’s name into disrepute can arguably be deemed to cause harm to the employer’s name and reputation and therefore, under the provisions of Good Faith that must exist within the employment relationship, could be considered to impair the relationship of trust and confidence.
However, for disciplinary action to be justifiable the Code of Conduct must contain clear provisions regarding damage or harm to the employer’s name or reputation. It may be an arguable defense, if such a clause is not present, that the employer cannot simply try to argue that the action was inappropriate and therefore warrants disciplinary action.
The absence of a specific provision within the Code of Conduct relating to damage or harm to an employer’s name and reputation may therefore make the difference between dismissal occurring, a written warning being provided, or whether the employer has valid grounds to issue any form of formal sanction against the employee.
How does this impact on an employee’s right to free speech?
Some may seek to argue that an employer cannot take actions against an employee for what they do in their own time. Others may seek to argue that, for an employer to seek to take actions against an employee for comments made (including social media posts), is a breach of the employee’s right to free speech. While this argument may have some merit, it would generally fail where clear evidence exists to directly link the employee’s actions to the identity of the employer.
Russell was interviewed by HRD Media regarding this topic – please see the published article by clicking this link:
https://www.hcamag.com/nz/specialisation/employment-law/when-does-personal-behaviour-become-a-professional-problem/536943