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Do the right thing
1990 was a very strange year for cinema.
The Golden Palm at the Cannes Film Festival was won by an independent film, called Sex, Lies and Videotape. Amongst other things, it kicked-started the movie careers of former model Andie McDowell and Laura San Giacomo.
At the same time, black cinema enjoyed something of a genesis.
Spike Lee's movie Do the Right Thing was a dramatic statement of inter-racial tension, romance and suburban violence. The critics called it "Shakespearian" (but as Spike Lee reflected, it's a strange world where Hamlet misses out on the biggest prize in film to a fellow who videos women talking about their love lives).
The title of Lee's movie is drawn from a simple moral premise: you can do what people tell you to, you can do what people force you to – or you can do what you know is the right thing.
This moral code - based on an individual’s conscience and self-knowledge of right and wrong - is not unknown at employment law.
Most workplaces have rules. Some are laid out in a person's employment contract. Others are prescribed in company policies - which may either be kept in handbooks or on a company intranet. Other rules may simply be a function of custom and practice. But in addition to all of those things, there are still some aspects of a workplace which require employees to exercise their own discretion - and necessitate them deciding to do the right thing.
A recent decision of the Employment Court provides an illustration of this phenomenon.
The defendants in Chief Executive of the Department of Inland Revenue v Buchanan and Symes (Unreported, Employment Court Wellington, Goddard CJ, 16 December 2004) were employees of the IRD. Because of the nature of their work, they had access to an IRD website which contained details of almost every taxpayer in New Zealand.
Historically, there had been some issues associated with misbehaviour by employees with access to this website. In particular, there had been a problem with what had become known as "celebrity surfing" - where employees inappropriately accessed tax details of prominent individuals (apparently for their own amusement).
In 2001 the IRD provided training to its employees about the way in which the database should be accessed. This training coincided with the issue of a code of conduct. Buchanan and Symes attended this training.
In addition to "celebrity surfing" the code of conduct served to inform employees that they should not access the tax details of any family members.
This particular aspect of the code of conduct received specific focus in 2003. The IRD undertook an audit of all employees who had accessed details of tax payers with the same surname as their own. Over 30 incidents were identified - all of which resulted in some form of inquiry.
Buchanan and Symes had accessed details of family members. Some alteration had been made to the information on the database (including such things as the changing of addresses and issuing and confirming personal tax summaries). It appears, however, that there was no allegation that either of the employees had acted dishonestly - or had falsely altered any information.
On this basis, the IRD reached the (correct) conclusion that the employees had acted in breach of the code of conduct. The employees, however, claimed that they were unaware of the prohibition in the code preventing them from accessing family information. Irrespective of this, however, the IRD moved to dismiss the employees.
The employees raised personal grievances. They argued that the decision to dismiss them constituted disparate treatment – because other employees who had been the subject of similar inquiries had not lost their jobs. The Employment Relations Authority agreed with the employees' arguments, and held that they had been unjustly dismissed. The IRD appealed to the Employment Court.
The Employment Court reached the same conclusion as the Authority - but on a different basis. The Chief Judge held that the central issue in the case was the employees' ignorance of the code of conduct. The IRD accepted that the employees did not know that what they were doing was contrary to a provision of the code - and the Chief Judge found that this meant that the employees' actions, whilst wrong, could not amount to serious misconduct justifying dismissal. He ordered that the employees be reinstated.
Put in a slightly different context, the issue in this case was whether the employees' wrongdoing was so obvious that they were in breach of their common-sense obligation to do the right thing.
The Chief Judge took the view that the nature of the wrongdoing was such that the employees could only have recognised as it inappropriate if they had received specific notice. Even though they had received training, they were not aware of the particular provision in the code of conduct - and the Chief Judge found that the situation was not sufficiently serious to justify dismissal.
This case illustrates that, in some circumstances, employees will not lose their jobs through a failure to do the right thing. More is required - including specific notification of the moral standard expected in particular situations.
