A recent Employment Relations Authority decision highlights the importance of being aware of one’s behaviour when driving a company car in personal time. There has always been a fine balance between what employees can do in their own time without reprise from their employer and what can reasonably be seen by the employer as misconduct.
This balance is well illustrated in the case of McDonald v Porse In-Home Childcare (NZ) Ltd. It involved Porse (in-home childcare provider) and an employee who was able to use a company car while on annual leave. The (now) ex-employee took her car to Kaiteriteri on a camping holiday.
While on holiday she evidently had run-ins with a number of her fellow campers. Complaints were made to Porse that Ms McDonald had been verbally abusive to other campers and their children, and had sworn at her own children in earshot of other campers.
Porse commenced an investigation into the allegations against Ms McDonald. The company concluded that there was sufficient relationship between Ms McDonald’s conduct at Kaiteriteri and the nature of Porse’s business for her holiday behaviour to damage or potentially damage Porse’s business reputation. For that reason, Porse considered that Ms McDonald’s actions amounted to serious misconduct and she was dismissed.
Ms McDonald lodged a personal grievance on the grounds of unjustified dismissal. Pending the hearing of her substantive case, she also sought interim reinstatement to her position but she was unsuccessful. In declining Ms McDonald’s application, the Employment Relations Authority noted that although there were potentially some flaws in the way Porse had conducted its investigation, the overall justice of the case (for interim reinstatement) favoured Porse.
If Ms McDonald continues with her substantive claim Porse will in all likelihood argue that its involvement in the childcare industry meant that Ms McDonald’s allegedly yelling and frightening children was serious misconduct, even though that conduct occurred while Ms McDonald was on annual leave. That may be a difficult argument for McDonald to overcome.
This case highlights the need for employers make sure they have a work place policy in place that expressly governs extra-curricular use of company vehicles.
The moral of the story for employees? If you are inclined to lose your cool in public, it might be best to leave the company car at home as your temper could well do you out of a job.
Article originally published in the Otago Daily Times on 18 April 2011.
