How risky behaviour outside working hours can cost jobs

By Sarah Townsend, Senior Solicitor

First published in the NBR,18 July 2008

The fall from grace of media personality Tony Veitch is a timely – and very Public - reminder that bad behaviour outside work hours can risk job security. The sticking point in this particular case is that Veitch’s bosses were aware of the issue well before it hit the headlines – albeit that its severity may have been downplayed.

But can they still demand he walks? On the one hand, the alleged assault took place over two and a half years ago in Tony Veitch’s personal life and was unconnected to work. Veitch has publicly apologised and has undergone an extensive period of counselling. TVNZ and Radio Sport already knew about the incident and did not dismiss him. Wouldn’t it be unfair to dismiss him now, after a trial by media?

On the other hand, the issue was extremely serious. TVNZ and Radio Sport also suggest that Veitch significantly downplayed the incident when he reported it to them. There is no doubt that the fallout is having a significant impact directly on the reputations of TVNZ and Radio Sport.

Many employers will have been faced with the dilemma, although rarely in such a public way, of whether to dismiss staff for something they have done outside of work, in their own time.

But, dismissing an employee for something they have done outside of work in their private life is not a decision to be taken lightly and each case must be investigated fairly and considered on its own merits. As with any dismissal, a full investigation must be carried out and a fair process followed before making the decision to dismiss. If an employee’s actions outside of work can be linked back to the employer and bring the employer into disrepute, this can amount to serious misconduct justifying summary dismissal.

Employees also need to be aware that their private life is not always private, particularly where their actions have the potential to bring their employer into disrepute.

Take the case of a primary schoolteacher in Australia, who recently lost her job after she appeared in a magazine posing nude with her husband. The teacher, who worked at a primary school teaching six and seven-year-olds, appeared with her husband in a sealed section of Cleo, a magazine aimed at women in their 20s and 30s. The feature, which included nine other couples, involved the teacher and her husband sharing details about each other’s favourite body part and their sexual practices. The feature was accompanied by a discreet nude photo of the couple. The issue came to the school’s attention after a parent complained and the teacher immediately lost her job.

In New Zealand, the issue has also arisen in the context of employees badmouthing their employers in online ‘blogs’. Last year, The Warehouse sacked an employee when she posted on her Bebo page that “work sux” and that working until midnight was “gay like the management”.

In the United States, a police officer was dismissed last year after setting up and running a website featuring sexually explicit videos and photographs of his wife. When the local press got hold of the story, it caused a storm of negative publicity and, even though there was nothing illegal about the website, the policeman was sacked for bringing the police force into disrepute.

It is clear then, that employers can and do dismiss employees because of their conduct outside of work, even if the employee’s activity is not illegal. It seems that the higher the profile of the employer, the higher the public’s expectations are that the employer (and by association its employees) will conduct itself appropriately.

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