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Out of work conduct: when is dismissal justified?

We see it all the time in professional sports: athletes losing their contracts over poor decisions made away from the game. Take for example, Todd Carney who was spectacularly sacked from the Cronulla Sharks, without procedural fairness, following the ‘bubbler’ incident, or Nick D’Arcy who was kicked off the Australian swimming team bound for the Beijing Olympics after he punched former swimmer, Simon Cowley, in the face, breaking his jaw. The reason that is almost always given by the clubs and sporting bodies to justify the athlete’s termination is that they ‘brought the sport into disrepute’ or that they breached the team’s code of conduct.

Due to the tremendous amount of attention that is received when a professional athlete puts a foot wrong and then the subsequent disciplinary action that inevitably follows, it is not unusual for employers to similarly think that they are entitled to take action against an employee when they exhibit out of work behaviour that they do not agree with. Whilst this is normally behaviour which would be considered criminal and which the police are involved in, it also increasingly includes posts on social media which could be damaging to a colleague or the business as a whole. So then, when can an employer dismiss an employee for conduct that occurred away from work?

The key for employers to remember is that they have very little control over how an employee chooses to spend their time away from work. They cannot dictate what an employee can or cannot do unless there is a sufficient connection to the person’s work and likewise, it is very difficult for an employer to terminate an employee’s employment (which will subsequently not be found by the Fair Work Commission to be unfair) for out of work conduct.

In Deeth v Milly Hill Pty Ltd [2015] FWC 6422, an employer was found to have unfairly dismissed an apprentice butcher after he had been arrested for being an accessory after the fact to murder. The employer produced evidence that customers would boycott the small butchery and other employees would resign if it continued to employ the apprentice. However, the Fair Work Commission found that the employer had a ‘knee jerk’ reaction to the arrest and should have carried out a reasonable investigation prior to terminating.

This case makes it clear that employers must be extremely careful when terminating an employee for out of work conduct. Further, employers must still ensure that a fair process is carried out, no matter how serious the alleged out of work conduct is. Just one of the factors that the Fair Work Commission must have regard to when determining an unfair dismissal is whether the employer had a valid reason for dismissal. The other factors which are considered are all relevant to whether a procedurally fair process was implemented and whether the employee was given the opportunity to respond to the allegations prior to termination.

However, there will be times when an employer can consider termination (following, of course, a procedurally fair process), including when the behaviour:

  • Damages the reputation or commercial interests of the employer (for example, by very specifically referring to the company on social media in a damaging or disparaging way);
  • Is incompatible with the employee’s duties that they perform for the employer (for example, if a truck driver had their licence suspended or cancelled for high range drink driving);
  • Occurs at an extension of a work related event or occurs in the presence of colleagues (for example, if a person becomes intoxicated at a work event and after it has ended, an employee sexually harasses a colleague).

In Kolodjashnij v J Boag and Son Brewing Pty Ltd [2010] FWAFB 3258, Fair Work Australia (as it was then called) found that an employee who had been terminated after being charged with driving his personal vehicle whilst three times over the legal blood alcohol limit, was not unfair. Importantly in this case, the employer, who was a manufacturer of alcohol, had a policy that stated that if an employee was charged with drink driving, their employment would be automatically terminated because of the negative impact it would have on the business, which was located in a small town. In this case, the employee was aware of the impact a drink driving charge would have. Further, the employer took time to make the decision and allowed the employee to respond to the allegations which were made against him, ensuring that the process was fair.

What is important for a business to ensure when it comes up against an employee who has acted poorly outside of work is to consider the impact that it actually has on the business. Whilst the employer might find the conduct to be morally or ethically wrong, this will not be enough to terminate the employee’s employment. The conduct must be sufficiently related to the employee’s job so as to impact the business’ reputation and/or render the employee incapable of carrying out their duties.

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