Nothing funny about clowning around - Bringing an employer into disrepute

In the past week, Dominos Pizza (USA) experienced every company’s worst nightmare. Two employees filmed a prank in the kitchen involving one preparing sandwiches while putting cheese up his nose, nasal mucas on the sandwiches and violating other health-code standards. The two posted the video on YouTube and within a day it had been viewed more than a million times, references to it were in five of the twelve results on the first page of Google search for “Dominos” and discussions about Domino’s had spread globally throughout Twitter. Needless to say, the employees were fired, despite their statements that the incidents were a joke and the tainted food was never delivered. They also face federal charges. The incident is not only a reminder to all employers of the reach of social media, but also of the risk to an employer’s reputation arising from employees conduct.

Good faith underpins New Zealand employment law. An incident of a similar nature to the Domino’s workers would give employers good cause to doubt its ability to have trust and confidence in an employee. Employers have the ability to dismiss an employee who brings the employer company into disrepute. However, once the damage is done, employers have a number of options in terms of pursuing the employee beyond a dismissal. These include:

- raising a claim for losses incurred, based on the actions being well outside the scope of employment; or

- raising a claim against an employee for breach of good faith, where penalties are able to be sought.

The difficulty for an employer in the circumstances often arises from the inability to recover any real losses from the employee, who often has limited financial resources.

As with most horror scenarios, in the case of any employment relationship, the best means of defense is to prevent an incident occurring in the first place. Proactive steps such as policies regarding social networking sites, appropriate supervision in the workplace, comprehensive inductions to ensure employees understand the values of the organisation as well as ongoing training and communication as to expectations, are likely to engage an employee better in the workplace. Employees who have a good understanding of their part to play in an organisation and are rewarded for their contributions, are ordinarily less likely to act in a way that puts both themselves and the company at risk.

Unfortunately, Dominos experience is a reminder to employers and employees of the potential significance to both employer and employee of one act of stupidity. Employers are wise to consider ‘refreshers’ to remind employees of workplace expectations, ensure that employee contributions in the workplace are acknowledged and that employees are actively engaged in the business. Employees would be wise to remember that one incident can have disastrous, far reaching and permanent consequences.

(Article first published in Waikato Times, 1 May 2009) These publications are necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in these publications