Earlier this month during the anti-mandate protests in Wellington a former Northland school teacher was filmed throwing bricks as police worked to clear the occupation.
This raises the question about whether an employer can make a finding of either misconduct or serious misconduct against an employee for actions conducted in the employee’s personal time outside of work and take disciplinary action against the employee.
The short answer to this question is “yes”, so long as there is a link between the employee’s conduct outside of work in their personal time and their employment and the conduct adversely affects the employment relationship.
As with any type of disciplinary action an employer takes, the employer must be able to justify that the action (i.e. warning or dismissal) was what a fair and reasonable employer could have done in all of the circumstances.
Conduct adverse to the employment relationship can include conduct that:
- damages the employer’s business in some way, for example by bringing it into disrepute;
- is incompatible with the proper discharge of the employee’s duties;
- strikes at the heart of the employment relationship; and/or
- undermines or destroys the trust and confidence necessary between and employer and an employee.
Additional factors that may be considered include:
- the nature of the employer’s business;
- the employee’s role and duties;
- whether the misconduct was public or private in nature (this includes considering whether the conduct was on a social media platform or gained media attention); and
- the response of reasonable customers to the employee’s conduct.
In New Zealand the freedom to protest is protected by the Bill of Rights Act 1990 via its provisions regarding freedom of thought, conscience and religion; freedom of expression; freedom of peaceful assembly; and freedom of movement.
Therefore, if an employee engages in a legitimate, peaceful protest it is highly unlikely that an employer could justifiably initiate disciplinary proceedings against them, even if the employer fundamentally disagreed with the employee’s reasons for protesting.
However, if the employee has engaged in an unlawful protest and violent protest, then it is possible that their conduct may be considered as either adverse or potentially adverse to the employment relationship and justified disciplinary action could potentially result.
If you have any concerns regarding an employee’s conduct outside of work, or any other employment related questions, please do not hesitate to get in touch with us.
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