New Zealand: Employer justified in dismissing for "out of work" behaviour

Last Updated: 30 November 2013

By Rob Towner and Anna Holland

In April this year we reported on the Employment Relations Authority determination on the justified dismissal of Guy Hallwright, a senior investment analyst at Forsyth Barr. The case was recently brought before the Employment Court on appeal, and last week the Employment Court held that Mr Hallwright's dismissal was justified.

In the case of Hallwright v Forsyth Barr Ltd [2013] NZEmpC 202 the Employment Court found that Mr Hallwright's highly publicised "road rage" conviction, which took place out of work hours and which was widely published by national news media, brought Forsyth Barr into disrepute and compromised Mr Hallwright's ability to do his job.

The Court's decision provides some valuable practical guidance for employers. It is a useful reminder for both employers and employees that misconduct occurring outside work hours may justify a dismissal. Employers should always take care to act reasonably in the circumstances and follow a fair process. This may include delaying a decision on discipline/dismissal pending the outcome of a criminal trial and sentencing.

Behaviour related to employment

Mr Hallwright's employment agreement included an obligation not to engage in any activity that was likely to compromise his ability to carry out his duties.

Because the incident did not occur during work hours, Mr Hallwright contended that his conduct was unrelated to his employment, and that it was a private "driving" matter. (He also considered, at the time, that he was not under an obligation to inform his employer of the incident or the related charges.) In Court, Mr Hallwright argued that his employer was not materially bought into disrepute by either his conviction or the media reporting. However, the Court found otherwise.

It is well established that conduct that occurs outside the workplace can give rise to disciplinary action. While much will depend on the particular context, the Court commented in Hallwright that different forms of out-of-hours conduct cannot automatically be excluded from the reach of an employment agreement.

In assessing whether conduct is linked to employment, the Court said that the test is not necessarily whether the conduct itself is directly linked, but whether it has the potential to impact negatively on employment. Judge Inglis explained, "that is why an employee can be held out for what might otherwise be regarded a private activity, carried out away from the workplace and with no ostensible connection to the employment or other employees."

The Court reiterated that the focus of the enquiry is on the impact of an employee's conduct on the employer's business. The nature of an employer's business and the validity of its concerns about maintaining its reputation (both in the marketplace and within its client base) are taken into account in determining the required nexus between an employee's conduct and their employment.

Serious misconduct

Mr Hallwright's employment agreement defined serious misconduct to include conduct "bringing the employer into disrepute". Reputational damage can be difficult for employers to establish. Helpfully for employers, the Court reiterated that an employer is not required to prove that it has suffered reputational damage to establish serious misconduct. Rather, the standard is whether the employer has a reasonable basis for forming the view that its employee has committed serious misconduct at the relevant time.

Accordingly, the Court found that the employer's view that its reputation had been damaged was one that was reasonably open to it, having regard to the circumstances at the time. Judge Inglis commented that "the reality was that Mr Hallwright was in a high profile, trusted senior position within the company, and extensive media coverage had linked his offending with the company brand."

Further, an employer is not required to take retrospective steps to apply for name suppression or seek out public relations advice in order to maintain its position. Mr Hallwright's submission that the company was responsible for not mitigating the damage to its reputation was unsuccessful.

Conviction affected employee's ability to undertake his duties

Mr Hallwright submitted in Court that his engagement with news media was an "ancillary," rather than integral, part of his role, and his ability to undertake his duties was not compromised by either the fact of his conviction or the media reporting. The Court found otherwise, and held that an integral part of his role involved media engagement through providing comment on topical issues.

Court's approval of employer's process

While the incident occurred in 2010, Mr Hallwright's dismissal did not take place until some two years later following the conclusion of the criminal process.

The Court noted that the company was placed in a difficult position due to the lengthy criminal process. On the one hand, any steps to take disciplinary action against Mr Hallwright pending the outcome of the criminal process may have led to a personal grievance, particularly given the employee's assurances that he was innocent and the truth would come out at trial. On the other hand, Mr Hallwright later complained that he had been lulled into a false sense of security because the employer delayed taking disciplinary action.

The Court approved the employer's course of action in standing behind Mr Hallwright while he vigorously defended the criminal charges, wearing the collateral damage to its reputation in the interim, giving him the presumption of innocence and making it clear that it was reserving judgment and allowing the criminal process to run its course before reaching a concluded view or taking disciplinary action. Reassuringly for employers, the Court commented that it "struggled to see" how the employer could be criticised for adopting the process that it did.

While in practice this meant that Mr Hallwright stayed in employment for two years, including engaging with media on work-related issues, the Court found that this did not vitiate the company's ability to take disciplinary action against him following his conviction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.