It may come as a surprise for some that on occasions conduct occurring outside the workplace can give rise to disciplinary action by an employer.

In the case of Smith v The Christchurch Press Company Ltd Mr Smith was dismissed for serious misconduct after making unwanted sexual advances towards a co-worker during a lunch break at his house.

In this case the Court of Appeal confirmed that “It is not so much a question of where the conduct occurs but rather its impact or potential impact on the employer’s business, because the business may be damaged in some way; because the conduct is incompatible with the proper discharge of the employee’s duties; because it impacts on the employer’s obligations to other employees or for any other reason it undermines the trust and confidence necessary between employer and employee.”

In Smith the Court of Appeal upheld the Employment Court’s finding that the decision to dismiss Mr Smith was justified. The Court of Appeal said it was “irrelevant” that the sexual conduct occurred outside the workplace at lunchtime.

Thus with regard to conduct occurring outside the workplace resulting in disciplinary action, the key is to identify whether there is a sufficient link between the employee’s conduct and their employment.

This article is intended as a point of reference and should not be relied on as a substitute for professional advice. Specialist advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this article.

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