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Perspective

Managing employee misconduct outside working hours

Disciplinary action may be taken for out of work conduct where it damages the employer’s reputation or interests. For example, if an employee engages in drink driving and this is publicised through the media, the employer may summarily dismiss the employee or at least issue a first and final warning where the employer’s public image or branding involves the promotion of responsible drinking.

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In the case of Chambers v Toll Transport Pty Ltd [2020] FWC 5819, the Fair Work Commission (FWC) found a physical altercation between two Toll Transport employees following a union meeting was not sufficiently connected to their employment.

During the altercation one employee fell on broken glass cutting his hand while the other suffered various cuts, a concussion and bruising which resulted in him being unfit for work. Toll dismissed both employees for serious misconduct.

The FWC found there was no valid reason for dismissal for one of the employees given he did not engage in the conduct at work. The FWC is yet to issue a decision in relation to the other employee’s unfair dismissal claim.

While Toll funded the employees’ airfares, accommodation and meals so they could attend the meeting, the meeting was out of work hours and organised by the union. The employees were not required, nor directed by Toll to attend, and the employees were on leave as union delegates at the time.

Lessons for Employers:

  1. Leave is leave. When an employee is on leave, away from the workplace and not on-call, they are not at work.
  2. An employee who is also a union delegate does not always wear the two hats at the same time. There must still be some connection both ways. In this case, if the employees had attended the union meeting as delegates at a Toll workplace, or before, during or after a rostered shift, it may have been sufficiently connected to their employment.
  3. Where an incident such as the one in this case occurs out of work hours, the employer is still entitled to investigate and the employee/s are required to co-operate, be candid and honest.
  4. While Toll had no valid reason to dismiss the reinstated employee for his conduct during the altercation, had he been dishonest during the investigation that would have provided sufficient grounds to take some form of disciplinary action.

Written by Nes Demir

Have a question or need advice?

Our team is here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Andrew Douglas.

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