Or in the case of Mr Carter, perhaps a love for Labour lost... Though he may tell you his actions are in fact motivated by a love for Labour (in this case, the party), leaving aside any issue of personality.
Whatever the case, I don't quite think Mr Shakespeare had
the Labour Party, or indeed Mr Carter, in mind when he penned his well known comedy; Love's Labour's Lost - the tale of three men taking an oath to devote themselves to three years of study, promising not to give in to the company of women.
Mr Carter took no such oath, but a parallel exists in the inherent obligation on employees to act in the best interests of their employer and the implied duty of fidelity.
For anyone who has been living under a rock, or has no interest in the latest political scandal to hit the headlines, Labour MP Chris Carter is back in the spotlight after penning (or in fact typing) an anonymous letter which referred to growing discontent amongst the caucus about his boss, leader Phil Goff, and in particular his leadership style and his 'poor personal polling'. The letter also referred to an upcoming 'move' against the leader.
Serious misconduct? Or speaking his mind and voicing his views?
It is important to bear in mind when considering possible serious misconduct that there is no one right answer. It is always a question of fact and degree, and above all the answer depends on an assessment of the circumstances at the time as to what is reasonable - both in terms of the employee's actions and the employer's decisions.
The test, which I have referred to in this blog before, is set out in section 103A of the Employment Relations Act 2000: is it a decision a fair and reasonable employer would have made, in all the circumstances, at the time the decision to dismiss was made.
Some employers like to set out examples of serious misconduct within their policies and or employment agreements. It is not a process I favour, as an argument can be raised with such a list (even where it is expressly stated that it is not an exhaustive list) that if conduct is not included in that list, or is not similar to the conduct in that list, that it is not serious misconduct.
And one thing you quickly learn in employment law is that the actions of employees can, and will, surprise you.
So, leaving aside the status of politicians as elected representatives and not employees, a policy or agreement may or may not have identified making comments that are unsupportive of the party in a list of examples of serious misconduct.
Using a more extreme example, one of my favourite former clients from my time practicing in Wellington learnt the value of not listing examples of serious misconduct when they had an employee of their café stab a pigeon with a fork in front of a customer. Serious misconduct - yes. Conduct you might have anticipated and thought to list - probably not.
The upshot is, conduct or behaviour which is not in the best interests of the employer may amount to a breach of an employee's implied duty of fidelity. Further, it may irreparably damage the necessary relationship of trust and confidence, which underpins all employment relationships. Further, the conduct may, depending on the facts and circumstances, constitute serious misconduct and warrant the termination of employment.
There has been a lot of discussion in recent times about the comparative rights and obligations of employees and employers as parties to an employment relationship. In my view that discussion is healthy, and the continuation of it in the face of further changes to employment law can only be a good thing for the development of this area of the law in New Zealand.
In the meantime, Mr Carter's days with the Labour Party look numbered, following his suspension until August 7th and as he continues, unrepentant in his actions, to question the ability of the party leader to continue.
It is difficult to see how the party could continue to have faith in his loyalty to it, unless he can successfully put his case that his actions are in fact for the benefit of and loyal to the party.
Whatever the outcome, let's hope it doesn't end in another of Shakespeare's favourites - the tragedy!
Bridget Smith
Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts
