Employee brain explosions – human behaviour that defies rational explanation

It seems rather topical at this time of year, for those who are football fans at least, to discuss the topic of employee “brain explosions”.

Let’s take the example of the Zinedine Zidane’s headbutt; 2006 FIFA World Cup final, France vs Italy, the score still level at 1–1 after 90 minutes, and the match forced into extra time. Zidane, (playing his last ever match) and Italian defender Materazzi were jogging up the pitch close to each other, Materazzi was seen tugging at Zidane’s jersey before Zidane began to walk away from him. Moments later, Zidane suddenly stopped, turned around and head-butted Materazzi’s chest, knocking him to the ground. Ultimately, Zidane was issued with a red card in his last ever game and Italy went on to beat France 5–3 on penalties.

“Brain explosions”, as they have become so aptly known in the employment law field, can sometimes be a legitimate excuse for an employee’s actions, which can prevent an employer from terminating the employment relationship.

The issue of ‘brain explosion’ was first considered by the Employment Court in the case of Dr X v Auckland District Health Board (ADHB), in which the Employment Court issued the famous words:

“Conduct that falls into that category of human behaviour that defies rational explanation is the occasional and spectacular Zidane ‘brain explosions’ of human existence”.

In that case Dr X, who was a long serving senior employee of ADHB, had a “brain explosion” and emailed a photo of his genitals to a colleague. He also forwarded an email to others containing a lewd calendar. The ABHB became aware of his actions and commenced a disciplinary investigation during which Dr X acknowledged what he had done, expressed his complete remorse over his actions and provided assurances to ADHB that his conduct would not occur again. Ultimately, he was dismissed. The Court concluded that the punishment of dismissal did not ‘fit the crime’. The Court held that it was a one-off brain explosion that a fair and reasonable employer would not have dismissed a long serving senior employee for.

Similarly, in the case of Mrs X v An Employer, the Employment Relations Authority considered an application for reinstatement by Mrs X, who was a kindergarten teacher. Mrs X intentionally gave her first name as that of a colleague Ms Z, thereby implicating her in an act of dishonesty. Mrs X attempted to reverse the effects of her action around 30 minutes later but the matter eventually came to the attention of her employer (the kindergarten). Mrs X admitted that while she did as was alleged, her actions were not deliberate or intended to deceive, and that they were inconsistent with the person she was due to significant stress that she had been suffering at the time (which related to other circumstances of her employment).  The Authority held that objectively, Mrs X’s conduct was not serious (at least compared with that of Dr X’s), it was a one off, and the actions were reversed before any direct material consequences ensued, and, consequently, her action could reasonably be said to fall into the same category as a temporary “brain explosion”.

While each case will still need to be considered on its own facts in the circumstances, employers should remember that the Zidane “brain explosion” should at least be considered in “one-off” type conduct cases.

Workplace Law team

If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:

Employment: Andrew Shaw, Fiona McMillan, Gwen DrewittMaria Green,  Hannah Martin, Joseph HarropHolly StruckmanAlex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia StrickettKen Huang, Mary Zhou, Shi Sheng Cai (Shoosh)Sarah Kirkwood, Janeske SchutteLingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew ShawFiona McMillan

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