We’ve been hearing a lot about lockdown breaches since the country went back into Alert Level 4. There have been cases in Queenstown, Wanaka, and Auckland; and a group of seven men from six different bubbles even thought it was ok to meet up to go jet boating together.
Since Alert Level 4 came back into place, the Police have received 7,867 online breach notifications relating to businesses, mass gatherings or people; and 71 people have been charged with 75 offences as at 12 September 2021.
But is breaching the COVID Alert Levels 4 and 3 a sackable offence?
The short answer is yes – it can be.
In certain circumstances an employer could justifiably terminate an employee’s employment if they are found to have failed to abide by the stay-at-home rules issued under the relevant COVID-19 Public Health Response (Alert Level Requirements) Orders (“Orders”).
The circumstances leading up to the failure to comply and the type of offending, whether it was intentional, unintentional, or reckless, are critical in determining what action should be taken, if any.
The relevant Orders reflect the differing levels of offending that can occur. An intentional failure to adhere to the stay-at-home rules carries a more significant penalty than an unintentional one. An unintentional failure carries a maximum infringement fee of $300 or a fine up to $1,000 whereas an intentional failure could mean a fine of no more than $4,000 or even imprisonment of up to six months.
It has long been the case that misconduct outside of work can constitute a justifiable reason for an employer to terminate an employee’s employment.
There must be a clear relationship between the conduct in question and the employee’s employment though. The conduct must also have impacted or have the potential to impact, the employer’s business and/or the employment relationship. The relationship between the behaviour and position the employee holds is important.
When considering the actual or potential impact of the employee’s conduct, an employer must consider a wide range of things, including whether the business may be damaged in some way - for example reputational damage.
The employer must also consider whether the conduct impairs the person’s ability to carry out their duties as an employee. The conduct for instance could illustrate poor judgment when sound judgment is a critical part of their role, or the conduct may not align with the trust required to hold a senior and trusted position within the organisation.
Consideration should also be given to whether it impacts upon the company’s obligations to its other employees; or if it undermines the trust and confidence necessary between employer and employees.
As always, the question when considering any disciplinary action should be, is this decision one that a fair and reasonable employer could take in the circumstances?