Photography / Dave Shaver
No business can operate without having asked the question: when does an employee’s out of working hours conduct give rise to grounds for disciplinary action? The question, unfortunately, does not have a simple answer.
What does the law say?
In short, while an employer doesn’t have an unfettered right to “police” the private lives of employees, the courts and tribunals have accepted that there may be grounds for legitimate concerns by employers where an employee’s conduct:
Is, viewed objectively, likely to cause serious damage to the employment relationship; or
Damages the employer’s interests; or
Is incompatible with the employee’s duty as an employee.[1]
Of course, this test is ultimately a matter of degree having regard to the facts and circumstances of each case.
In this post, we consider “where the line can be drawn” in the context of recent Fair Work Commission (FWC) unfair dismissal case law.
Out of hours drink driving charge
In Bobrenitsky v Sydney Trains[2], the FWC considered a train driver’s out of hours drink driving charge and whether it had the requisite connection to employment.
The FWC found it did not and made orders for the employee to be reinstated with back pay for work lost since the date of dismissal.
The employee had been arrested by the police for suspicion of impaired driving, on a non-working day and a day before he was next rostered to work. The charge by the police was one that could result in imprisonment of 18 months.
However, ultimately, the employee was fined and sentenced to a two-year community corrections order, a six-month licence suspension and a requirement to have an interlock device installed on his car for two years after the return of his licence.
After a comprehensive internal disciplinary process, the employee was dismissed including for having breached the employer’s Code of Conduct.
The FWC found the driving offence, although serious, did not have the requisite link to employment.
The FWC distinguished comments made in Hussein v Westpac Banking Corporation[3], an earlier case involving an employee whose employment was terminated following a conviction of credit card fraud unconnected with his employment. In the earlier case, the Industrial Relations Court said “a conviction on a drink-driving charge which occurred outside work hours would not be relevant to the employment of many people. However, it would be of critical relevance to a truck or taxi driver”.
The FWC found this comment in the earlier case was not relevant, including because a driver’s licence is not required to drive a train.
In finding the dismissal was unfair, the FWC had regard to factors including the employee’s contrition and remorse (with the employee acknowledging his action was “inexcusable”), the employee’s age and length of service (seven years) and the fact that in the view of the FWC the conduct was unlikely to be repeated (including as the employee had independently undertaken significant rehabilitation). Further, the FWC found the train driver had, in the course of his employment, performed his duties “practically flawlessly”.
The FWC concluded by saying it was not for the employer to “add in any way to the punishment that [had already] been imposed on the employee” in criminal proceedings.
The employer has appealed the decision: watch this space.
Drug use at a work function
In Harris v Meadowbrook Golf Club[4], the FWC considered a golf professional’s drug use at a private function for a co-worker’s birthday held at the golf club.
By contrast to the position taken in Bobrenitsky v Sydney Trains, the FWC found that in the circumstances of this case the employee’s conduct did have the requisite link to employment despite the conduct taking place outside of the employee’s working hours.
The employee in this case had offered a number of people, including his co-workers, marijuana at the birthday function. The employee had also admitted to his co-workers that he went to his car “all the time” to smoke marijuana to manage his stress and anxiety at work.
In finding the dismissal was not unfair, the FWC had regard to factors including the employee’s admission that he had engaged in unlawful conduct at work and on the employer’s premises, the employee’s relatively short length of service (10 months) and evidence that the employee had already obtained other employment at another golf club.
While the FWC found procedural flaws in the process undertaken by the employer (including in that the employee was not given a proper opportunity to explain the allegations against him), the FWC determined these did not outweigh the valid reason for dismissal in this case.
Key takeaways for employers
De-bunking the myth: as the FWC said in Rose v Telstra, “an employee is entitled to a private life”. However, this does not mean such conduct is not capable of being the employer’s “business”. Whether such conduct can give rise to disciplinary action will, ultimately, be a matter of degree and depend on all the facts and circumstances in the case.
Setting clear expectations – the importance of policies and procedures: employers should give careful consideration to out of hours conduct they intend to manage and ensure that policies and procedures have appropriately broad (and reasonable) reach. For example, it is always prudent for a discrimination and harassment policy to be expressly drafted to have some scope to capture out of hours activity.
On 16 March 2022, a Full Bench of the Fair Work Commission reversed the first instance decision in Bobrenitsky v Sydney Trains (see [2022] FWCFB 32). An updated version of this blog post has been published as an article on Lexology, and is available at the following link: Out of hours conduct: where can employers draw the line? - Commentary - Lexology.
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Please give us a call on 02 8999 3300 or email hannah@theworkplace.com.au or alina@theworkplace.com.au if you need assistance with employees’ conduct.
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[1] Rose v Telstra [1998] AIRC 1592.
[2] Bobrenitsky v Sydney Trains [2021] FWC 3792, subject to appeal to a Full Bench of the FWC.
[3] Hussein v Westpac Banking Corporation (1995) 59 IR 103; [1995] IRCA 147.
[4] Harris v Meadowbrook Golf Club [2021] FWC 145.