News
Bringing your employer into disrepute
First published in The Independent, 10 October 2007.
It was Oscar Wilde who said it: The only thing worse than being talked about is not being talked about.
Unfortunately, in an employment law context, Mr Wilde may not necessarily be right.
Many employers place a very high value upon their reputation in society. For some, it is a case of expenditure of many millions of marketing dollars to create a particular (and favourable) public impression. For others, public image and public confidence in their reputation represent an essential cornerstone underpinning their existence.
So it is probably not counter intuitive that many - if not most - employers regard it as serious misconduct, justifying dismissal, for an employee to bring their organisation into disrepute.
But what exactly does this concept mean? In this context there are a few interesting aspects at a legal level.
First, the concept includes conduct committed outside of the workplace and outside of work time. In other words, something which you do in your personal life is capable of being linked to your job and can bring your employer into disrepute. That link will, of course, depend upon things such as your personal profile and the extent of publicity given to your activity.
Secondly, the activity need not be illegal. It can be something which, while not against the law, is simply inconsistent with your job or at least the expectations that the public might have for your role (and your employer's role more generally in society).
A recent decision in the United States illustrates some of the relevant principles in the area.
Ronald Dible was a sworn officer in a Police Department in Arizona. In January 2002 he began running a website featuring sexually explicit photographs and videos of his wife. The website was accessible only by people who agreed to pay an entrance fee. Such people were, however, able to view sexually explicit content including images of Officer Dible having sex with his wife (although, with the exception of one still photograph, his face was not visible in these scenes).
There is nothing to suggest that any of Dible's activities were illegal. But this did not prevent people from casting aspersions upon him, essentially on a moral basis.
Unfortunately for Dible, the local press learned about his website and reported on it in an unflattering manner. This, in turn, had an effect on some of Dible's colleagues, particularly female police officers. One gave evidence that she was called a "porn whore" by an individual that she was attempting to arrest. She also told the court that, on another occasion, a patron in a bar had begun gyrating and suggesting that she might take off her clothes because that was behaviour apparently acceptable for officers of the police force.
Dible's employer investigated the issue, and dismissed him for bringing the police into disrepute. Dible challenged the decision, arguing that he had a right to freedom of expression and that as he had not broken the law, his employer had acted unfairly.
The court disagreed with Dible's arguments and found in favour of his employer. The essence of its decision is captured in the following passage from the judgment: "Dible may have the constitutional right to run his sex oriented business, but he has no constitutional right to be a policeman for the city at the same time."
In essence, the court found that because of the nature of his job and the expectations that the public held for him (and the police force more generally) it was inappropriate for him to engage in this particular activity, and doing so had brought his employer into disrepute.
The position would probably be much the same in New Zealand.
The statute which governs the New Zealand Police contains a provision allowing the Commissioner to terminate an officer's employment if, following an inquiry, it is determined that the officer has behaved in a manner which tends to bring the police into disrepute.
In essence, therefore, if it could be shown that an officer had caused derision or scorn to be heaped upon the police force because of the nature of his or her private actions (as in Dible's case), termination may be justified.
This general principle is applicable in other occupations as well. For example, the New Zealand Public Service Code of Conduct provides, as its third principle, that public servants should avoid any activities which might tend to bring the public service into disrepute. The code records that circumstances which may cause this principle to be breached may vary depending upon the particular type of misconduct, and the particular position held by the employee.
And it is perhaps this last aspect that potentially causes a perception of unfairness.
Dible's activities were not illegal. And, arguably, the outcome would have been different had the nature of his particular job not required the same kind of high moral code or, quite simply, if his activities had not received such wide publicity.
Put another way, it was not so much the activities which were objectionable in Dible's case but rather the nature of his particular job, and the extent of the publicity given to his activities.
On that rationale, the nature of your role may curtail your ability to do some things which may be acceptable for others. And even within an organisation, the more important you get, the lower the level of tolerance for any question marks over activities conducted in your personal life -if your status means that public opinion may be piqued by your actions.
This is a difficult area. On one hand, it is a concept which seems to make sense and to be acceptable. On the other, its application to particular circumstances might raise some difficult questions.
