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Behaving badly

By Scott Wilson, Partner

A recent case involving a disgruntled social worker highlights how misconduct outside the workplace can justify dismissal. Leading employment lawyer Scott Wilson, of Duncan Cotterill, looks at what happened.

Misconduct outside the workplace can justify dismissal, especially where the conduct raises questions of an employee’s suitability for the job or is connected with the employment in some other way.   This can include conduct in a secondary workplace as the recent employment court case of Fleming v Delamore & Reidy illustrates.

Vincent Fleming  was initially employed by Delamore & Reidy as a social worker.  The company provides full time care for mental health patients and runs five homes in the Auckland region (including Jon’s House). Mr Fleming was promoted to service manager of Jon’s House and was responsible for managing four mental health workers and overseeing the necessary care and support for patients.

The employment relationship was initially good but began to deteriorate a short time after Mr Fleming returned from a lengthy holiday.

Delamore & Reidy believed that Mr Fleming would benefit from undertaking a business course and, despite an initial reluctance, he enrolled in a series.  Unbeknown to Delamore & Reidy he became involved in a dispute with the administration of that institution.

He also became antagonistic towards senior personnel within Delamore & Reidy and raised numerous problems with them relating to what he saw as unacceptable behaviour by his direct reports and a lack of support from his employer.  These issues were dealt with, although Mr Fleming never appeared to be satisfied with the outcome.

In August 2008 a staff member raised an issue about Mr Fleming’s care of a patient.  He viewed this as an allegation of abuse being levelled against him.  An investigation was carried out and Mr Fleming was informed that no such allegation was being made and that the matter was now resolved.  Not satisfied with this, Mr Fleming applied for mediation over several issues but it was unsuccessful in resolving his concerns.  He then filed proceedings in the Employment Relations Authority.

Soon after, Delamore & Reidy received advice from another mental health provider that Mr Fleming had verbally abused its resident patients.  This was alleged to have occurred during a weekly support group meeting led by Mr Fleming.  This support group work was secondary to that performed for Delamore & Reidy and Mr Fleming was employed by the ProActive Trust for this work. 

Delamore & Reidy also discovered that Mr Fleming was in employment disputes with the ProActive Trust, and another entity where he worked part time, as well as the educational institution where he was undertaking the business course.

On receiving information regarding the allegation of abuse, Delamore & Reidy began an employment investigation, which indicated that Mr Fleming had called the resident “dumb” and a “homo” in front of other members of the group he was leading.

At a disciplinary meeting Mr Fleming (and his representative) denied the allegations and attacked the credibility and capacity of the complainant and other residents who observed the incident on the basis that, given their intellectual impairment, they lacked the capacity to be able to make a complaint of this nature and accordingly their credibility was in question.  Not surprisingly, this in itself caused Delamore & Reidy concern, given the nature of the services it provided and that Mr Fleming was a qualified social worker.

Delamore & Reidy looked to carry out further inquiries, given the nature of Mr Fleming’s responses.  He, however, took the view that it should not make further inquiries. That being the case, the company had no option but to draw an inference from Mr Fleming’s actions and decided to dismiss him for serious misconduct. 

Mr Fleming pursued a claim alleging he had, among other things, been unjustifiably dismissed in the Employment Relations Authority and was unsuccessful.  He then went to the Employment Court but achieved no more success.

The Court accepted that Delamore & Reidy had acted as a fair and reasonable employer. His behaviour towards patients and residents under his supervision, wherever he was employed as a social worker, was important to his employment by virtue of its specialisation. 

The Court found that Delamore & Reidy was entitled to take into account Mr Fleming’s conduct with a secondary employer, given that this had impacted on the business and was incompatible with the proper discharge of his duties.   The Court also accepted that the company was entitled to have lost trust and confidence in Mr Fleming given his contention that the complainant and witnesses were inherently unreliable as a result of their intellectual disabilities. This was at odds with his professional obligations – an important part of his role related to protecting and respecting the rights of patients such as the complainant.  The dismissal was found to be justified. 

This is a case where Mr Fleming did not help himself.  He was, as the Authority concluded, “the architect of his own misfortunes”.  It does reinforce the point that an employee can be held to account for their conduct outside the workplace where that conduct has the potential to impact on an employer’s business and otherwise calls in to question the employee’s suitability for the role.

• Scott Wilson is a partner specialising in employment law at Duncan Cotterill. S.wilson@DuncanCotterill.com;www.DuncanCotterill.com

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.