Excitement surrounding the Rugby World Cup 2011 is gathering pace. However, employers should not lose sight of the fact that an international sporting event of this magnitude in New Zealand could impact on the productivity of their employees, and consequently, their businesses. In this FYI we summarise, in a light-hearted way, some employment law issues that could be relevant leading up to what will hopefully be New Zealand's anticipated return to the rugby glory of 1987.
Die-hard rugby fans who are otherwise exemplary employees may be tempted to take the occasional 'sickie' to attend, or at least watch, a game or two. The recent amendments to the Holidays Act 2003 allow an employer greater flexibility to manage this issue. An employer may now request proof of sickness or injury from an employee for any period of sick leave, even for one day's absence. If so, the employer will however have to pay for obtaining such proof.
Employees would be ill-advised to forge or falsify a medical certificate. This may be treated as misconduct or serious misconduct by an employer, and lead to disciplinary action including dismissal.
Although unlikely, an employee may seek to take unauthorised leave or simply not turn up for work for longer periods to watch or attend matches. If an employee is absent for an extended period of time without good cause, the employer may ultimately determine that the employment has been abandoned. Before an employer can reach this conclusion, it must make a reasonable effort to contact the employee and find out the reason for the absence. Most employment agreements have abandonment clauses, so these would be the first port of call.
Matches scheduled during work hours
When matches are scheduled during working hours, it is inevitable that those employees who have done the right thing and actually turned up for work, may be tempted to use modern technology to spend more time checking the current scores than actually working.
The level to which an employee is able to use work computers and internet services (if any) is generally a matter of policy. We recommend that if your employees have largely unfettered access to the internet at work, you implement (or reiterate) your policies regarding what is, and what is not, acceptable personal use. Any such policy should include the ability for the employer to monitor internet use, and employees should be reminded that any inappropriate misuse or abuse of personal access to the internet may result in disciplinary action. This is particularly so because checking news websites for match scores will most likely fall outside of the standard internet filters that commonly block access to social networking sites and sites like TradeMe etc.
Aside from the ability for some employees to access news and sports websites from their workstations, the myriad of modern personal technology available such as iPads, iPhones and other smart devices may also be an issue. Many of these devices can stream video via WIFI or over 3G networks. They may therefore operate outside of an employer's IT system altogether, and their use cannot be easily monitored. Employers may therefore wish to remind employees that excessive use of such devices during work hours is not acceptable.
Of course, some employers may be as fanatical as their staff when it comes to rugby. It is open to employers to take a more flexible approach, and look to adjust normal working hours to accommodate some matches (with employees' agreement). Alternatively, employers may allow employees to watch some games on a big screen at the workplace. This could be a relatively simple way of raising morale (assuming the All Blacks win) as well as being a team building exercise. This could also discourage employees from taking that occasional 'sickie' or absence referred to above.
Intoxicated during work hours
Whether celebrating a win or drowning sorrows following a loss, some employees may find themselves socialising more often during the Rugby World Cup. At best, this may lead to the occasional sore head and unproductive employee in the morning. At worst, it could result in your employees arriving for work intoxicated. This could also be an issue where games are scheduled during lunch breaks, where the nearest big screen is at the local pub.
Intoxicated employees can be a safety risk to themselves and to others in the workplace. This risk is obviously compounded in any safety sensitive area. How an employer deals with intoxicated employees will depend on its policies and the relevant clauses of an employee's employment agreement.
Regardless of any such policy, where an employee's intoxication (or fitness for work) poses a genuine health and safety risk to themselves or others, then an employer may look to send the employee home, and consider disciplinary action as a result.
Misconduct outside of the workplace
Rugby rivalry can occasionally bring out the worst in some people. For example, there is the potential for an overzealous employee to have one too many drinks at the local pub after work and get into a heated debate with, say, a Springbok fan about the 2007 World Cup, a England supporter about the 2003 World Cup, or a Wallabies fan about the 1999 World Cup (unfortunately the list goes on). Should this debate evolve into an altercation, or the employee becomes involved in other inappropriate actions outside of the workplace, there is potentially scope for an employer to take issue with this. Reasons for doing so would include situations where the employee's actions have the potential to bring the employer into disrepute and/or have some impact on the employee's ability to perform their duties.
Cases have demonstrated that if, for example, an employee was wearing a jacket bearing the logo of their workplace, or they were otherwise easily identified with their employer at the time of their offending behaviour, there is a greater risk that the employee will bring their employer into disrepute.
In preparation for 9 September 2011, we recommend you review your current policies and procedures to see if they cover the issues raised above in your workplace. We would be happy to assist in any such review.
And on a final note, go the All Blacks!