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Employers stop the spread of cheer
Cheerleading is a curious occupation.
To the average New Zealand sports fan, a cheerleaders are an occasional sight at rugby games. Young, and often scantily clad, women who willingly dance and high-kick their way through a sporting event.
In some overseas countries, however, cheerleading is a professional occupation. And one which is seemingly given to the raising of employment problems.
Certain of the teams in Australia's National Rugby League employ cheerleaders. One of these teams, the Wests Tigers, retained a troupe known affectionately as "the Kittens".
Kittens are required to enter into employment contracts. And each cheerleader is required to agree to a contractual provision whereby she is agrees not to "fraternise" with any of the players from her Club's team. Earlier this year, one of the Wests Tigers' players, New Zealander Benji Marshall, had a 21st birthday party. He invited three of the Kittens - who attended.
There is no suggestion that these young women misbehaved themselves - or did anything at the party which might be considered to be inappropriate conduct.
But the very fact that the cheerleaders attended the party was enough for their employer to dismiss them. It cited the contractual provision whereby they agreed not to fraternise with players - and alleged a breach of it. It seems that the Club concluded that the breach was so serious that it justified termination of their employment.
So the Kittens lost their jobs - all for attending a party.
But what would have happened under New Zealand law?
As a starting point, the contractual clause is rather unusual. In essence, it represents an agreement by an employee not to socialise with a defined group of people.
In concept, such clauses are not entirely unknown to employment law.
For example, all employees owe an obligation of confidentiality. In certain occupations (most often involving contact with sensitive information) employment agreements prohibit contact with employees from competitor organisations who may be involved in the same area. Put simply, the employer may perceive that any contact could give rise to a reasonable fear that confidential information might be "leaked".
Similarly, by the very nature of some occupations, social contact with certain groups of people may be inappropriate. For example, a Judge would probably be best advised to avoid socialising with a representative who is involved in arguing one side of a case before the Court.
But neither of these reasons appear to apply to the case of the cheerleaders. And what makes the contractual clause unusual is that it prohibits contact with co-workers - something which is generally encouraged, not discouraged, by employers.
The reason behind the prohibition on social contact seems to be a desire to avoid the prospect of young attractive women distracting young, highly-paid rugby league players from their task.
But if that is the case, the contractual prohibition goes a good deal further than one might think necessary. It does not limit the prohibited social contact to situations in which the players are expected to perform their jobs - and is rather directed at a blanket ban on all contact.
One can imagine the competing arguments that would be raised before New Zealand's Employment Relations Authority.
On one hand, one could expect that the employer would argue that, irrespective of the reasons for the contractual prohibition, the cheerleaders agreed to it as part of their employment. And as such, having broken a provision that they agreed to uphold when they started their job, they have acted in such a way as to bring into question the employer's ability to have ongoing trust and confidence in them.
On the other hand, one might expect that the cheerleaders would argue that by attending a social function, outside of work hours, they could hardly be said to have breached any of the general obligations (eg of confidentiality or loyalty) that they owed to the employer. And they might also argue that dismissal for their apparent transgression was an overly harsh reaction to what was probably good-hearted participation in a social event.
One suspects that, while the employer probably has a point, the relatively employee-friendly environment of New Zealand's employment jurisdiction would tend to favour a finding for the cheerleaders.
This may not always be the outcome in a situation involving a prohibition clause like this. But success would probably depend upon the employer's ability to demonstrate a legitimate interest which was sought to be protected by way of the clause.
And after all, all these young women did was attempt to spread a little cheer.
And aren't they suppose to be leaders in that field?
