We are now getting down to the business end of the Cricket World Cup. Fun for everyone – as long as the Black Caps keep winning... But how do you ensure your business does not suffer as the country celebrates?
Face sick leave square on
You can just imagine it – an employee calls in sick and is then seen later that day catching a ball one-handed in the stands. While the misuse of sick leave is a valid concern for an employer, it is important not to make a knee jerk decision before hearing from the employee.
The very nature of sick leave means that it is a benefit for the employee that results in a loss for the employer – the cost of day’s pay and in the loss of productive time. That loss is more keenly felt when sick leave is not taken for a genuine reason. A recent decision from the Employment Court has made it very clear that ‘pulling a sickie’ can give rise to a justified dismissal.
In Taiapa v Te Runanga O Turanganui A Kiwa Trust the Employment Court considered the dismissal of an employee for inappropriate use of sick leave. The employer had commenced disciplinary action after seeing facebook photographs of the employee at a waka ama competition during a period when he was on sick leave for a calf muscle injury. The Employment Court held that while an employee may recuperate away from his or her home, an employer is justified in inquiring into the genuineness of sick leave if an employee’s activities are inconsistent with sick leave. In Taiapa, the Court held that the employer was justified in concluding that the employee’s attendance at a sporting event suggested he was not sick/injured in a manner that would prevent him from attending work.
Like many aspects of employment law, context is everything. Should you be faced with what looks like inappropriate use of sick leave, a proper inquiry into the employee’s conduct is essential if you do not want someone else reviewing your dismissal decision.
When does sledging become bullying?
Sledging is apparently a common occurrence on the pitch, but the boundaries shift when this type of banter occurs within a workplace. In the heightened competitiveness that is knock out cricket, what is intended as jovial banter can cross the line to workplace bullying, even when this is not intended. This is an employment issue, as employers have an obligation to provide a safe working environment, which includes ensuring that the workplace is free from bullying behaviour.
While banter should be light hearted and invite a friendly response, bullying is defined by WorkSafe as “repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety”. Should workplace bullying occur and remain unchecked, an employer may be liable for harm suffered by affected employees. In extreme situations, a prosecution for breach of the Health and Safety in Employment Act is a possibility.
Employers should ensure expectations regarding workplace conduct and bullying are understood. It is a good idea to have a workplace policy dealing with this issue, along with providing training where appropriate and monitoring bullying indicators such as absenteeism, complaints and resignations.
Where the line is to be drawn will differ for different workplaces. As a general rule, you should watch out for:
- banter that is not reciprocal;
- banter that is targeted at a particular employee or a particular group of employees by reason of a particular characteristic (for example, team/country allegiance); and
- comments that are overly personal or make you, as a manager, feel uncomfortable.
If you do receive a complaint of bullying, ensure that you take it seriously. Even if the issue appears trivial at first glance, an employer still has an obligation to investigate a complaint and protect the parties involved to the extent necessary. As the ex-X Factor judges now know, bullying in any shape or form should not be tolerated. It's just not cricket!
Howzat!!!! Ensuring employees celebrate safely and within the realms of your drug and alcohol policy
Cricket World Cup matches present a great client development and/or staff reward opportunity. But what are your expectations of an employee if they are attending the cricket on work time and representing you as their employer? The standard of behaviour demanded in a corporate box on a Tuesday afternoon is likely to be different from a Saturday evening on the Terraces – both in terms of alcohol consumption and the throwing of empty bottles during a Mexican wave.
It is critical that employees understand these obligations. If an employee is attending an event during the working day on behalf of his/her employer, an employer can insist on compliance with the company’s code of conduct and drug and alcohol policy. It may be prudent to remind the employee of these expectations prior to the event.
Despite the best of intentions, what happens if your employee is ejected from the ground for bad behaviour or is seen on television celebrating in an inappropriate manner? Provided you can establish that the employee has breached their obligations and there is a sufficient connection between the breach and you as the employer, disciplinary action is a possibility. A “sufficient connection” could be established by the employee wearing a company shirt, identifying themselves to others as being associated with the company or if they were present on behalf of the company.
It is also foreseeable that over-celebration by an employee could lead to issues the morning after. If you suspect an employee may have presented for work under the influence of drugs or alcohol, it may be possible for an employer to conduct drug and/or alcohol testing. Should you be considering this, it is vital that you comply with internal policies and procedures. The courts have been clear that disciplinary action is unlikely to be justified if an employer has failed to adhere to its own policies, even in situations where an employee has attended work with drugs or alcohol still in their system.
Ambush marketing – don't get caught out
As New Zealand continues to excel in hosting major global sporting events, it's important to remember there are some unique considerations that can arise when either taking your colleagues to the event or using your employees to promote your business. What might seem like clever advertising could result in a serious run out for your business.
The Major Events Management Act 2007 (MEMA) came into force to protect Rugby World Cup 2011. It also applies to one-off internationally significant major events where protection from “ambush marketing” is a requirement for the award of hosting rights. The MEMA provides protection to organisers and sponsors of major events (such as the Cricket World Cup or the FIFA Under 20s World Cup to be held in New Zealand in a few months) from ambush marketing.
Getting your staff to attend matches in the same corporate branded clothing might not be quite as effective as the Dutch brewery which employed 36 Dutch models wearing “tightly hugging short orange dresses” featuring the Brewery’s brand to attend a FIFA Football World Cup game in 2010, but it could still be considered ambush marketing. Something to bear in mind if you and your colleagues are looking at novel ways to celebrate New Zealand progressing through the Cricket World Cup!
Please feel free to get in touch with a member of the team if you would like to discuss any of the issues in this update.
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This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.