Can any misconduct justify dismissal?

Wednesday 23 May 2007

There was a young lawyer called Rex,
Who had a strange passion for sex;
When charged with exposure,
He replied with composure,
"But Your Honour:  non de minimis lex".

The law often delights itself by relying upon strange concepts – often with Latin names.

The rule of non de minimis lex sounds impressive – but can be simply stated: the law is not concerned with little things (which hopefully makes sense of the limerick above!)

In essence, the concept is that wrongdoing of a sufficiently small standard should not attract the attention of the law.  Punishing inconsequential transgressions is a waste of everyone's time. 

This principle is applicable in the employment context.  But it is sometimes difficult to know whether certain types of misconduct are, in the context of a particular job, sufficiently inconsequential to avoid punishment. 

Sometimes, wrongdoing which would be de minimis in one workplace may constitute a serious breach in another. 

It was reported last week that a worker in the fast-food franchise Subway had been dismissed from her employment after she shared a drink with a friend during a break.  Security video footage showed the employee sharing a cup of soft drink, then refilling it and leaving it on a table. The retail value of the drinks was approximately $4.00. 

The unusual aspect of the case was that, in addition to being dismissed, the matter was referred to the Police – who charged her with theft.  Subsequently, that charge has apparently been withdrawn.

It has been reported that the employee has raised an employment problem concerning her dismissal – from which one might presume that she intends to take issue with the validity of her employee’s decision to dismiss her.

But even if guilty of taking and sharing drinks at work, should a person lose their job over such a small wrongdoing?

The general rules in this area are simply stated, but can often be difficult to apply.  In short, under New Zealand law an employer is entitled to dismiss for any conduct which constitutes "serious misconduct". 

It is, however, impossible to provide a comprehensive definition of this term.  The best guidance that employers may receive is that from the Court of Appeal in Northern Distribution Union v BP Oil – namely, "conduct that deeply impairs or is destructive of that basic confidence or trust that is an essential of the employment relationship".

Harking back to the limerick at the outset of this article, de minimis conduct is, in the ordinary course of things, unlikely to be significant enough to constitute serious misconduct.

But what is seemingly inconsequential in the context of one employment relationship may be deeply destructive in another workplace setting. 

For example, most employers would allow employees to make personal telephone calls from work – providing that they are of a reasonable frequency and duration.  But, on the other hand, if the particular workplace is a call centre, it may be impractical to allow employees to make personal telephone calls while at work and, in this context, doing so might constitute serious misconduct. 

There are a number of examples of seemingly inconsequential conduct of this type being relied upon by employers to justify dismissal.

In 2001, an employer which operated a saw milling business dismissed an employee for the "conversion" of five Krispie biscuits. 

In 2002, an employer which operated a cinema complex dismissed an employee for eating a small quantity of burnt popcorn.

In each case, the employer argued that the particular nature of the wrongdoing struck at the heart of the trust required in the particular employment environment.  Equally, however, in each case the employee succeeded in establishing that, in truth, the employer had over-reacted by applying a disproportionate penalty to something which amounted to a de minimis offence.

This is undoubtedly a difficult area of law.  When deciding whether particular misconduct is sufficient to justify dismissal, an employer needs to give careful consideration to all the circumstances of the offending to determine whether it is serious or rather of inconsequential significance.