Kim McLagan: So Monnette, now on to our main topic and talking about after hours conduct.

Monnette Samo: Yeah.

Kim McLagan: So, we see this all the time in terms of workers’ compensation, people being terminated and lodging an unfair dismissal claim relating to conduct outside of work.

Monnette Samo: Yeah.

Kim McLagan: Sexual harassment cases and each jurisdiction is a little bit different and we’ll bring that out more so in the case study.

Monnette Samo: Yeah.

Kim McLagan: But the facts of this case of, I’m not even going to try and pronounce that.

Monnette Samo: Demanuele.

Kim McLagan: Demanuele and St. Vincent’s Hospital. Demanuele was employed by St. Vincent’s Hospital and had been identified on an X post.

Monnette Samo: Yeah.

Kim McLagan: So, and the post identified her as an employee of the hospital and also protesting in a violent protest- by entering into a restaurant-

Monnette Samo: Art a restaurant.

Kim McLagan: Chanting, “Death to the IDF”, hurling chairs,-

Monnette Samo: Breaking a window.

Kim McLagan: Food, glasses and smashing a window. And, after the post, the hospital investigated her conduct or commenced an investigation into her conduct causing a serious and imminent risk to the reputation of the hospital.

Monnette Samo: Yeah.

Kim McLagan: Which is one of the definitions of serious misconduct under the Fair Work Regulations. And then she was charged by police. So they included investigations, sorry, included allegations in the investigation that she hadn’t disclosed the criminal charges. So she requested that the investigation into her misconduct be delayed until after the criminal proceedings had been concluded.

And when the hospital refused that, then she brought an application to the Fair Work Commission for a dispute under the enterprise agreement. So she argued that the protest activities had no bearing whatsoever on her employment, but of course the hospital argued it impacted her work and her out of hours conduct was likely to damage the employment relationship and the employer’s reputation.

Monnette Samo: Yeah.

Kim McLagan: And, the commission found in the employer’s favour that it can commence a disciplinary process if it held genuine concerns that her private activities have the relevant connection with employment. So this… The leading case in this discussion about any out con… Out of hours conduct is Rose and Telstra. And the principles from that case, and I’m sorry I’ve got to read all this, but there’s a lot of information.

So the conduct must be such that viewed objectively, it’s likely to cause serious damage to the relationship between the employer employee or the conduct damages the employer’s interests, or the conduct is incompatible with the employee’s duty as an employee. So we’re seeing more and more cases, talking about out of hours conduct in relation to social media conduct.

Monnette Samo: Yeah.

Kim McLagan: Criminal charges or convictions outside of work, as in this case, workplace bullying and harassment, which occurs after hours, often, you know, Friday night drinks or drinks after work,-

Monnette Samo: Yeah.

Kim McLagan: Christmas parties, it’s really prevalent. Again, intoxication or violence at work related functions. And, as a result, the conduct causing reputational damage to the employer. So would you like to read our case study, Monnette?

Monnette Samo: Yeah, sure thing. So, “Mick worked for Hard Street, a not-for-profit that cared for the homeless. Mick was a social justice worker whose focus was homeless men with alcohol and drug dependence issues and current issues with domestic violence. The men Mick worked with were inclined to be men who had been forced from the family home, following court orders preventing them from approaching their partner after drug and alcohol fueled violence. Mick worked with Risa, a German woman who recently passed her social work degree at Latrobe University. She was 23 years old and Mick was 48.

Mick ran classes for men called Men’s Behaviour Change. The classes dealt with the sources of violence, methods of identifying red flags, understanding the key issues of power and control within relationships and personal de-escalation. Risa’s role was to monitor the men’s progress with drugs, alcohol, and violence over the 12 week programmed, find them secure and safe accommodation and work with them where possible to safely reintegrate them into their family life. Mick and Risa worked closely. Their jobs were pressurized, involved exposure to regular psychosocial… Psychological hazards.” Sorry. “Of incivility, aggression, and at times violence along with vicarious trauma.

Hard Street was aware of the impact on staff of managing and supporting clientele. Several justice parental support and social workers had used all of their personal leave, had minor breaks on workers’ compensation and had left. His turnover rate was over 30% annually in face-to-face workers. Risa spoke to Mick’s supervisor, Dave. She said was becoming increasingly difficult to work with. He was irritable, demanding in what he expected, which she called micromanaging. And she felt she had no autonomy. She acknowledged it had been more difficult as the current intake of men had several who suffered some acute mental health issues and many were coming off heavy use of meth.

She said she felt very challenged by the misogynistic and very aggressive behaviour of this cohort, but understood it came with the job. Dave said he would speak to Mick. Good to his word, Dave spoke to, checked his emotional temperature and shared Risa’s observations. He gave the context that Risa cared about him and wanted him to be safe and not harmed by his working experience. Mick was thankful, said he would reflect and also cared for Risa. He didn’t mean to make her life tough, and he would fix it. When work finished that night, he said to Risa he had to pick up his son, drop him at his mom’s house, and wondered whether he could catch up for a bite to eat and chat later.

He explained he had a great chat with Dave and wanted to fix things, but preferred to do it outside of work. They agreed to meet at 8:30 at a nearby Afghan restaurant. When Mick arrived at the restaurant, it was obvious to Risa he had been drinking. She excused herself and said, ‘Perhaps today is not the best day. I have to call in and see some girlfriends.’ As she stood up to leave, he blocked her exit and said, ‘I thought you cared about me.’ She pushed past him and left in a hurry. She was not aware he followed her home and at 1:00 AM in the morning, Mick broke through her door and assaulted her housemate who sought to prevent his entry and acted in a sexually inappropriate manner. Police arrived and Mick was arrested.”

Kim McLagan: Oh, that was a long one.

Monnette Samo: It was a long one.

Kim McLagan: Okay, so our first question is, can Mick be sacked for his out of work behaviour? Undoubtedly, yes.

Monnette Samo: Yeah.

Kim McLagan: And it’d be the same principles that I talked about earlier in Telstra and Rose. So employers can rely on out of work conduct where there is a sufficient connection to the employment. So again, where the conduct damages the employer’s interests, seriously harms the employment relationship and is compatible with the employee’s role. And that’s very important and relevant in this case because the very nature of Mick’s job is to work with men to prevent them from engaging in domestic violence.

Monnette Samo: And he’s doing the very same thing.

Kim McLagan: And yet he’s doing the very same thing. So the behaviour goes to the very heart of his role. So yeah, he would not have a chance of defending, of succeeding in a unfair dismissal claim.

Monnette Samo: Yeah.

Kim McLagan: So our second question, Monnette.

Monnette Samo: So can Risa bring a workers’ compensation claim based on or out of work conduct?

Kim McLagan: Yeah, see, I think this could go either way, you see. So we defend a lot of workers’ comp claims and this one is arguable, it seems really straightforward on the face of it. So, the test is the injury must arise out of or in the course of the employment. And the issue here will be if there’s a sufficient connection to the employment. All of these cases turn on their own facts. There’s no one size fits all, as you’re say.

And generally the cases will turn on whether the injury arose at a place or during an activity that the employer encouraged the work to be participating in. This case is a little bit different from the usual run of the mill cases. The difference in this case though, the injury was inflicted by a colleague. So there’s sufficient… I think there will be sufficient connection to employment purely on the basis that it was inflicted by a colleague and not a non-work-related person. And certainly, he invited her to dinner. So, there definitely was that connection if there had have been anything that arose out of the dinner, undoubtedly it would’ve been connected.

Monnette Samo: Yeah.

Kim McLagan: Given the break that occurred between the dinner and her going home and being in her own home, I think the employer will probably argue that there wasn’t a sufficient connection.

Monnette Samo: Yeah.

Kim McLagan: But I think the overriding fact was that because it was perpetrated by a colleague, there will be sufficient and so her workers’ comp claim would succeed. It’s long answer to a short question. So our next question is, can Risa bring a sexual harassment case given it had occurred out of work? The equal opportunity legislation is even broader than the Fair Work Commission and the workers’ comp, how sexual harassment is applied.

So, you’ve got to remember the definition of sexual harassment is engaging in unwelcome sexual advance or requests for sexual favours, or other unwelcome conduct of a sexual nature in circumstances where the reasonable person would anticipate that the person harassed would be offended, humiliated or intimidated. So certainly get over the issue of sexual harassment. But also then again, in connection with employment is given an even broader practical approach than what say workers’ comp. So in this case, definitely she will be able to bring a sexual harassment claim.

Monnette Samo: Good and, was there a safety breach by the employer, Dave and Mick?

Kim McLagan: Yeah.

Monnette Samo: And if so, could they be charged?

Kim McLagan: Yeah, I think all would be charged. I think Hard Street is unlikely to be liable for the assault in Risa’s home because there’s just an insufficient nexus there. But, both Dave, Mick’s supervisor and Hard Street would both be liable for breaching their primary duty.

Because Hard Street failed to intervene, it didn’t provide safe methods to control the very clearly identifiable risk that Risa had brought to their attention. And the psychological hazards were easy to identify, and again, just no Controls were put in place. Dave breached his personal duty to prevent harm by not intervening and Mick would be charged under the Crimes Act.

Monnette Samo: Yeah.

Kim McLagan: Okay. So that’s it from us, I felt we sped through that one.

Monnette Samo: There you go.

Kim McLagan: Thank you Monnette, we’ll see you next time.

Monnette Samo: Thanks Kim.