Can flouting lockdown cost you your job?

22 April 2020

For most people living in New Zealand, and perhaps the world, the last couple of months have changed lives in ways that would have been inconceivable only a short time ago.

We are presently in lockdown and can expect to be in under variations on lockdown, whether absolute or benign for some time to come.

Unfortunately, not everybody has followed the rules.

What guidance can employment law give us for those who breach the guidelines?

Police received thousands of reports of lockdown breaches regarding businesses and individuals. Over Easter weekend, police gave over 100 warnings in 24 hours to motorists not complying with the lockdown rules.

There have been some high-profile breaches.

Earlier this month, several Crusaders rugby players from different bubbles were spotted training together at a park in Christchurch.

Prime Minister Jacinda Ardern stated that that behaviour "flies directly in the face of the advice that we're giving" and called on sports stars to be better role models.

The crusaders are employees and are subject to a disciplinary code. New Zealand Rugby agreed the breach was "unacceptable" but stated that no disciplinary action would be taken against the players.

This came in the same week that Health Minister David Clark came under fire for taking a 20 kilometre trip to a beach during lockdown after already admitting to an additional incident of driving to a mountain-bike trail.

There were numerous calls for Clark to be dismissed. The prime minister stated that in normal circumstances she would "sack" Clark for the indiscretion, but she had decided against it to avoid disruption to the health sector.

Instead, he was stripped of his associate finance ministerial portfolio and was demoted to the bottom of the Government's Cabinet rankings.

Clark is not an employee. However, the same sort of expectations would apply to him as an employee and perhaps even more so because of his senior position in the Government.

Did David Clark get off lightly for such a serious misjudgement? Perhaps the humiliation of being publicly chastised by the prime minister and attacked by various media commentators is sufficient punishment, humiliating as it must be.

What if an employee of a private company was found to be breaching the lockdown rules in the same way as Clark did? Could they be disciplined?

Legally, an employee can be dismissed for conduct outside of work if that conduct might reasonably be viewed by the employer as adversely affecting the reputation of the employer's business.

This is demonstrated by a case involving a senior employee at Forsyth Barr, an investment firm, who was dismissed after a road rage incident that was heavily publicised.

The Employment Court found that the employee's conduct impacted negatively on the employer's reputation, and that dismissing the employee was a fair and reasonable decision.

What about lockdown breaches during work time?

In the United States, Amazon has warned workers it may fire workers who violate social distancing rules at work.

Are enforcement measures like these essential for public health? Or does it simply create more stress for workers adjusting to unprecedented health and safety requirements?

In New Zealand, employers are expected to operate in a way that minimises the risk of coronavirus transmission.

This involves things like social distancing, hygiene measures and restricting activity as much as possible. This is in line with employers' obligations to ensure their workers' health and safety so far as is reasonably practicable.

Workers have health and safety duties too, including the duty to comply, as far as the worker is reasonably able, with any reasonable instruction that is given by the employer, to allow the employer to comply with its health and safety obligations.

Accordingly, an employer would probably be entitled to discipline an employee for breaking lockdown rules during work, provided it follows proper process and complies with relevant policies and the employment agreement.

However, in this current climate we should all be taking care not to jump to conclusions. These are strange times, and some people have needed time to adapt to the new rules and restrictions.

People should not be flouting the lockdown rules, but resorting immediately to accusations, insults, and anger when you suspect a breach could backfire.

Public outrage arose out of a story about a nurse in the United Kingdom who returned from a 12-hour shift to find a note from a neighbour accusing her of breaching lockdown, and calling her "selfish" and "part of the problem".

The fact that she was a nurse was unbeknown to the neighbour who saw her coming and going in her vehicle.

Instead of recrimination, this crisis requires every one of us to dig deep into our personal reserves and to show others kindness and consideration and be slow to accuse them.

As the prime minister said, common sense and kindness will go a long way to get us through this.