HRM caught up with two leading figures in employment law
– DLA partner Laura Scampion
and solicitor Ashleigh May – who say the situation isn’t that far removed from what many HR professionals might have to deal with in the average workplace.
“Since the Aaron Smith saga broke, we have seen a significant amount of public comment based around the fact that Aaron is paid to play rugby and his private life should be his own affair,” say Scampion and May.
“Many people often think that their behaviour outside the workplace does not have anything to do with their work or their employer,” they continue. “In fact, 'misconduct' outside the workplace can result in justified disciplinary action, even if that 'misconduct' is not illegal.”
According to Scampion and May, incidents outside the workplace are most likely to warrant dismissal when: “The employer’s business is damaged in some way, the conduct has cast doubt on the employee’s suitability for the job, the conduct has adversely affected relationships with other employees in the workplace, the conduct has had an impact on safety at work, [or] the conduct has undermined the trust and confidence between the employer and employee.”
Thanks to this, May and Scampion say Smith’s recent antics could easily warrant disciplinary action, even up to dismissal – in some cases.
“Aaron Smith was in his All Blacks ‘number ones’ and travelling with the team. As such there was a clear relationship between the conduct and the employment. It’s not necessarily a question of where the conduct occurs but rather its impact or potential impact on the employer’s organisation. There is likely reputational damage here not to mention the conduct potentially undermining the trust and confidence,” they explain.
However, it’s not necessarily cut-and-dry.
“In saying that, behaviour by employees like criminal offending, unsafe or reckless conduct, or conduct in breach of professional ethical standard is easier to call for the employer in terms of disciplinary action,” they admit.
“Aaron’s conduct is probably more borderline - despite being inappropriate it appears to have been consensual. However, there are plenty of examples now where ‘lawful’ conduct outside the workplace results in disciplinary action.”
Interestingly, overwhelming media attention and public interest – like what we’ve seen with Aaron Smith – may even give employers more scope to discipline or dismiss unruly employees.
Scampion and May point to a 2013 case in which a senior investment analyst and Forsyth Barr was dismissed after he was convicted of causing grievous bodily harm with reckless disregard while driving.
“The incident, and the ensuing criminal charge and court case, was highly publicized and the subject of intense media interest. Forsyth Barr was repeatedly mentioned in media reports as being the employer,” reveal the pair.
“Following the employee's conviction and sentencing, Forsyth Barr dismissed the employee without notice for serious misconduct. The employee raised a personal grievance, claiming he was unjustifiably dismissed.”
Eventually, the ERA held that, despite offending occurring outside of the workplace and during personal time, the incident and subsequent conviction attracted such significant negative publicity that the employer’s reputation was adversely impacted – so the dismissal was fair.
“It is important to note that in this case the judge emphasized the fact that this was a senior employee, who was in a relatively high profile role which required regular contact with the media. The question of whether the decision to dismiss was what a fair and reasonable employer could do in all the circumstances will turn on the specifics of each case,” say Scampion and May.
Finally, as Smith awaits his as-yet unscheduled misconduct hearing, the pair have some advice for employers who have to hold similar meetings.
“Fair procedure must always be followed,” they stress. “Even where an employee has engaged in conduct which the employer finds shocking, good process should be a priority.
“Also, care needs to be taken when framing the disciplinary allegations about the ways in which the external conduct is said to impact on the employer; is it reputational damage? Unfitness? How does the conduct show that the employee is unfit? General undermining of trust and confidence?
“Carrying out this analysis carefully will ensure that the dismissal (or other disciplinary action) will fit within the principles the Courts have adopted.”
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All Black Aaron Smith is certainly no ordinary employee and, since news broke of his illicit toilet tryst, the entire nation has been debating how NZ Rugby should handle the matter – so what exactly is the right approach and can HR really learn something from the saga?