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‘Cynical’ workers wise to curb criticism

5 August 2014

As readers may have heard, sparks were metaphorically flying at one of New Zealand’s largest workplaces recently when an employee criticised a strategic decision made by the employer.

Telecom is due to change its name to “Spark” on August 8.

The name “Telecom” has a place within the fabric of our society and so the decision to change it has been debated extensively in the media.

It has also been subject to debate within the walls of Telecom itself. Recently Telecom chief executive Simon Moutter was forced to apologise to an employee who questioned the merit of the name change. An article had been posted on Telecom’s intranet system about the branding changes. Unsurprisingly, there was widespread interest and the article attracted more than 50 posts from Telecom employees.

The employee wrote a post which disagreed with the branding changes - he remarked there seemed to be “a lot of focus on the superficial and not enough on the vital”. Moutter posted a comment in response, labelling the employee’s views as “cynical and pretentious”. He stated “if you can’t leave your cynical side behind, feel free to let it loose on some other company”.

When later apologising, Moutter noted he welcomed employees offering diverse opinions as long as they were espoused in a constructive manner.

This example raises an interesting question - can employees make cynical or potentially damaging remarks about their employer?

Can an employee be dismissed from their job for perpetually displaying a negative attitude?

Employees owe a duty of fidelity to their employer and this includes acting in a way that promotes the interests of the employer and does not damage their reputation. Comments made to the media or via social media that break that trust and confidence can result in a dismissal, as the case of Lyndon Hohaia demonstrated.

Hohaia worked as a postie for New Zealand Post.

He began operating a publically accessible Facebook page (called “PostieLad”) and made a number of remarks about his employer.

These included unflattering references about a female colleague’s body and comments about customers of New Zealand Post. New Zealand Post dismissed Hohaia, claiming that his comments undermined the leadership and the effective operation of the New Zealand Post branch concerned.

The matter was eventually settled outside of Court and did not proceed to a full hearing at the Employment Relations Authority. However, at the hearing for interim reinstatement, the Authority noted that Hohaia’s remarks suggested he had a significant loss of respect and confidence in his employer. He did not succeed in getting interim reinstatement.

The distinguishing factor in the Telecom example is that the employee did not broadcast their comments to the “world at large”, so it could not be said that they had damaged the reputation of their employer. The comments were made “in-house” and so they did not initiate the dissent.

Like several other employees, the employee merely posted their views about an article, which was presumably posted to facilitate a robust discussion about the name change.

It appears the Telecom employee also wisely limited the comments to one singular post, and did not compile and update a dossier of discontent about the employer, as Hohaia did.

Employees are allowed to hold and express their own personal views about topics, so long as they do not destroy the employer’s trust in them.

However, employees should be careful about continually displaying a cynical or negative attitude about their work environment.

The employer has options in this regard.

Attitude or behavioural-related concerns can be tackled through performance management strategies, where the employer can clearly lay down their expectations about behaviour and impose disciplinary sanctions if those expectations are not met.

As a last resort, employers may also revert to the law of “incompatibility” - a situation when an employee becomes incompatible or not the right “fit” for their workplace.

This situation can arise because of a worker’s poor attitude or poor working relationships with colleagues.

Workers should be careful about when and how they express dissatisfaction about either their manager or their company.

Being communicative and having your own opinions in the workplace does not entitle a worker to continually denigrate their employer, or to affect the morale of other staff with their views. Crossing this line can result in a warning or ultimately, in more extreme cases such as Hohaia’s, a dismissal.

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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