An employment lawyer explains what HR can do if an employee is found to be part of an offensive organisation.
Few employers would be over the moon if their team member was found to be part of a gang but offensive organisations aren’t illegal so is there really anything HR could do?
Lucy Harris is a solicitor in the employment team at Simpson Grierson – she says employers do have some power to dismiss gang-affiliated staff as long as they can prove it had the power to negatively impact the business or its reputation.
“An employer can dismiss an employee for joining an organisation if this association could bring the employer into disrepute or amount to a serious breach through a loss of trust and confidence,” says Auckland-based Harris.
According to Harris, there would also need to be some link between the employee’s gang membership and their employment for the claim of potential damage to be considered credible.
“For example, if a prison officer joined a gang, this could be seen as striking at the heart of the employer's reputation and posing a serious conflict of interest,” she tells HRD. “On the other hand, if a street sweeper joined a gang, it may be harder to argue that there is a direct link to their employment that justifies dismissal.”
Harris says it’s important that employers have a policy in place which clearly specifies conflicts of interest and the likely consequences if such a situation arises during employment.
She also says employers could have grounds to dismiss an employee for any unlawful actions they commit in connection with an offensive association.
“Under the Crimes Act 1961, it is an offence to participate in an organised criminal group,” she tells HRD. “Again, whether the behaviour could justify dismissal will depend on the type and seriousness of the offending, the nature of the job, and other factors.”
While there is some scope for employers to act, Harris warns that they shouldn’t leap into action without careful consideration.
“An employer cannot dismiss an employee based on a prohibited ground of discrimination,” she says. “Prohibited grounds of discrimination include religious belief, ethical belief (which means the lack of religious belief), and political opinion. Therefore, employers should turn their minds to whether dismissal of an employee for joining an ‘offensive association’ could be seen as discrimination on any of these grounds.”
