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Ball in Guildford's court to fix problem

THE DOMINION POST - TUESDAY, 29 JANUARY 2013

Zac Guildford is sadly once again featuring prominently in newspapers for another alcohol-related incident.

We are told that on January 12 Guildford had too much to drink at a house party in Christchurch, became aggressive and punched Ryan Kerr, the son of well-known horse trainer Paul Kerr. Kerr was left with a black eye from the punch.

We are told, however, that Guildford has apologised to Kerr and that Kerr has accepted his apology.

Guildford, like all leading athletes, is a role model for youth, of whom high standards of behaviour are expected. In the case of Guildford, he is employed by the New Zealand Rugby Union. Like all employers, the NZRU is entitled to expect Guildford to behave in a way that does not bring it into disrepute.

In my column in November 2011, I commented on Guildford’s drunken antics in Rarotonga. I said: “Guildford has to do his part in his own recovery. Unless he does that, he will be on the front page of the newspapers again in yet another colourful article”.

The employer is conducting a disciplinary investigation into Guildford’s behaviour. Undoubtedly, it will want to treat him fairly and give him a full hearing before reaching any decision.

Guildford’s actions could potentially be considered as serious misconduct. Has the incident brought the employer into disrepute? In light of Guildford’s history, has it seriously damaged or destroyed the trust and confidence that the NZRU is entitled to expect in its relationship with him? Only a full and proper investigation can decide that. The result of the misconduct charge will be known some time in the future.

Even if it is determined that Guildford has crossed the line and his behaviour constitutes serious misconduct, that does not mean dismissal is the only option. The NZRU has a range of options, including a bare warning, to a warning coupled with some form of treatment programme, to finally, dismissal.

Indeed, Guildford has now taken himself out of the firing line by withdrawing from the Crusaders squad for this year’s Super 15 competition in order to partake in an intensive alcohol treatment programme.

The NZRU will, wisely, also have sufficient time in which to measure Guildford’s long term commitment to personal change and this can be considered when they determine a final outcome regarding his future.

It is important that employers consider ways that they can provide assistance to employees with substance-abuse problems, but it is clear from case law that the employee has to want to change.

In a leading case, an employee of Air New Zealand was dismissed after failing a random drug and alcohol test.

The employee challenged his dismissal but, in large part, because he had rejected the need to abstain from drug and alcohol use in spite of the safety requirements of his role, the dismissal was held to be justified.

Alcohol affects people very differently. Some are blessed with the ability to drink in moderation, whilst at the other end of the spectrum, alcoholism can set in. Where Guildford sits on this spectrum, we do not know. However, there is a vast range of support available to people with drinking problems and Guildford is lucky to be facing the problem at a time when so much support is readily available.

The key decisions for Guildford are what he wants to do with his life and what changes he is prepared to make. The odds are clearly shortening for him to be given another chance as the NZRU has in the past shown that its tolerance can only be stretched so far. The case of Steve Walsh is a prime example.

Until 2009, Walsh was one of New Zealand’s leading international referees. In spite of his on-field success, Walsh had received warnings from the NZRU following a number of troubling incidents. After he turned up to a referees’ conference in Sydney, worse for wear after drinking heavily the previous night, the NZRU decided to terminate Walsh’s employment, bringing a temporary halt to his career.

Walsh has managed to rehabilitate himself and has made a return to international refereeing. He is now employed by the Australian Rugby Union and no longer based in New Zealand.

One suspects that if Guildford continues on his current path, he is heading towards territory which Walsh has already charted. Should he survive this latest incident, the NZRU will no doubt be looking for a firm commitment from him that he is succeeding in his rehabilitation programme.

Real and permanent change is required. The NZRU is handling this promising young rugby player with compassion. The ball, as they say, is with Zac. I wish him well.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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