News
When employees don't like Mondays
Some people really have problems with Monday mornings.
In January 1979 a 16 year old girl, Brenda Ann Spencer, opened fire on children arriving at the Cleveland Elementary School in San Diego, killing two men and wounding eight students and a police officer.
When asked why she had been inspired to engage in this murderous act, Spencer simply told a reporter: "I don't like Mondays. This livened up the day.".
Spencer's actions provided the inspiration to another fellow (who apparently also didn't much like getting up on Monday mornings). That person was, of course, Bob Geldof (now the proud possessor of a Knighthood - and, in some circles, a Sainthood).
Geldof was inspired by Spencer's story to write the definitive Boomtown Rats song "I don't like Mondays" - which propelled the group to international stardom.
Sadly, employment law is also full of examples of employees who would prefer not to turn up to work on Monday morning. Thankfully, however, very few of them vent their reluctance by turning up with a shotgun (although, amazingly, this appears to occur occasionally in the United States).
The most recent example of an employee refusing to do his job is that of journalist Richard Gizbert.
Gizbert was a London-based journalist, who was employed by the American ABC News organisation. He was employed primarily as a war time correspondent - an unenviable job at the best of times. He had worked for 11 years with the ABC News covering wars in places such as Bosnia and Chechnya.
More recently, however, Gizbert's employer directed him to leave his comfortable existence in London to cover wartime conflict in Iraq. Gizbert refused. ABC News responded by sacking him.
Gizbert argued that he had negotiated with ABC News to allow him to remain outside of war zones. Amongst other things, he said that he was particularly concerned about travelling to Iraq since Westerners had become specific targets of bombings and abductions.
On one level, most of us can probably sympathise with Gizbert. Why would we want to give up the comforts of a quiet and peaceful existence, leaving behind family and friends, to travel to a war-torn environment where our life might be in danger?
The contrary view is, of course, that some people are employed to do precisely this. Gizbert's employer said that he was one of those people.
So when can an employee refuse to obey an employer’s direction to perform work? Under New Zealand law there are a couple of answers.
The starting point is in the common law. It is accepted by the New Zealand Courts that an employee may be required to perform any duties forming part of his or her employment contract. This will, of course, include any duties which are specifically spelt out in the contract (such as those that may be encapsulated in a job description). But that is not all. The Employment Court has accepted that the employee may be required to do anything which might be reasonably expected as a normal incident of his or her role.
An employee can, therefore, only refuse to perform work if it is outside the reasonable scope of his or her role. Applying this rule to Gizbert's circumstances, if a person was employed to be a wartime journalist, it would probably not be reasonable for him or her to refuse a direction to travel to Iraq to cover a war.
Thanks to a relatively recent amendment to the health and safety legislation, however, there may be an alternative route for a reluctant employee to pursue.
In 2003, the Health and Safety in Employment Act was amended to introduce a provision allowing employees to refuse to perform work that would be likely to cause them serious harm. Despite being in force for over two years, the provision is apparently untested. When introduced, it was anticipated that the provision would be relied upon most frequently by employees who were required to work in environments such as those involving dangerous machinery (and where the employee had a reasonable concern about a danger posed by unsafe equipment). The provision could, however, be applied to circumstances such as those which confronted Gizbert.
If Gizbert could convince a Court that the direction to travel to Iraq exposed him to work which would be likely to cause some serious harm (a reasonably high threshold) he could refuse on the basis of the health and safety legislation. Whether he would succeed is a difficult question - and one which would turn largely upon the specific circumstances of his job, and the tasks which would be required of him in Iraq (and the likelihood of danger associated with those tasks).
So, what will happen to an employee who simply doesn't like Monday mornings?
Under New Zealand law, provided that the employer is requiring the person to perform something reasonably associated with his or her role, the employee will probably have to simply harden up (at the risk of otherwise facing disciplinary action, possibly including dismissal).
The only possible exception may be where the employee can reasonably say that he or she would be exposed to an unsafe environment by following the employee's direction.
And as for Gizbert? Well, he lost his job - but at least no-one is going to shoot his whole day down.
