Dismissed for out of hours conduct: Why it happens

Out of hours misconduct has often been shown to lead to a fair dismissal of an employee. It does, however, depend on the circumstances. We’ve previously covered the seminal unfair dismissal case Rose vs Telstra Corporation Limited, where an employee was dismissed for an out of hours brawl with a colleague.

Getting into a fist fight with your coworker may seem like an open and shut case of out of hours misconduct warranting dismissal. But because the brawl took place in private, and the employee wasn’t on-call or wearing his uniform, his dismissal was deemed unfair. Are all unfair dismissal cases at the Fair work Commission this simple? No they are not, its really case by case and the context and the circumstances play a major role. Lets try and bring some clarity to the subject, please read on.

Does an employer have the right to regulate out of hours behaviour?

Many years ago, the line between work hours and an employee’s private life was unambiguously clear. But now, it’s far more blurred. Events like work drinks, employer paid trips, and an employee’s conduct over social media complicate the issue.

The Fair Work Commission (FWC) states that an employee’s out of hours conduct should not be subject to the scrutiny of their employer. However, an employer can involve themselves in an employee’s private life in certain circumstances. Specifically, when an employee’s out of hours misconduct amounts to a breach of their employment contract.

The rules around out of hours misconduct and unfair dismissal claims

In an unfair dismissal context, there are clear criteria that must be met for an employee to be fairly dismissed for out of hours misconduct. These were established in Rose vs Telstra Corporation Limited, and state that an employee’s conduct must be of a nature that:

• Is likely to seriously damage the employee-employer relationship.
• Damages the employer’s interests. For instance, the employer’s public reputation.
• Is incompatible with the employee’s duty as an employee.

The burden of proof is on the employer

It must be remembered that the onus is on the employer to prove that any of these criterions have been met. They must demonstrate that there’s a sufficient connection between the employment relationship and the employee’s out of hours misconduct. They must also provide material evidence for any claims made to this end.

For instance, an employer can’t simply state that they have incurred reputational damage due to the employee’s misconduct. Or that the employee’s ability to perform their duties has been compromised. They must back up these claims with clear evidence.

Let’s look at a recent unfair dismissal case concerning an employee who was dismissed for out of hours misconduct. This will help you understand the circumstances in which an employer can legitimately involve themselves in the private life of an employee. It will also provide insight into how the FWC weighs up certain factors when making a final ruling.

Delivery driver goes on a bender, gets dismissed for out of hours misconduct

In August, the Fair work heard an unfair dismissal case involving out of hours misconduct – Alexander Dominic Birkinshaw vs. Marlau Nominees Pty Ltd. It concerned Alexander Birkinshaw, a delivery driver for a family-owned liquor wholesaler, Paramount Liquor.

On the night of Friday 12 November 2021, Mr Birkinshaw made his way to Sydney’s Star City Casino where he consumed a significant amount of alcohol. He then decided to kick on at a bar just outside Sydney’s CBD, arriving at 2:00 am. This bar was a customer of his employer.

“Absolute rat:” Mr Birkinshaw falls afoul of bar management

Mr Birkinshaw’s behaviour at the bar, fuelled by his intoxication, was less than model. According to a text sent from the bar’s manager to a Paramount director the next day, the delivery driver began demanding free drinks. And when he was denied, he “started throwing threats around of delaying invoices and orders.”

The bar manager described Mr Birkinshaw as an “absolute rat” who soon “kicked up a stink,” and when he left the bar, “proceeded to yell at us over the road.” “This lad needs to lose his job,” demanded the bar manager in the text message. “Jesus,” replied the Paramount liquor director.

Employee is stood down for out of hours misconduct

When Mr Birkinshaw next showed up for work a few days later, he was summoned to a meeting with a senior manager for Paramount. The manager explained to Mr Birkinshaw that a complaint had been made against him.   Mr Birkinshaw confirmed that he’d been at the bar, but due to his intoxication, couldn’t fully recall what had occurred. He denied that he’d asked for free drinks based on his employment with Paramount. He also denied threatening to withhold deliveries when he was denied free drinks.

At the end of the meeting, Mr Birkinshaw was stood down from his employment while Paramount investigated (workplace investigation) the incident. He was asked to provide a statement of his version of events while on suspension. In the days thereafter, Mr Birkinshaw rang the bar to offer an apology, which was accepted.

Employee is dismissed for out of hours misconduct

As part of their investigation, Paramount management received further witness testimonials of Mr Birkinshaw’s behaviour that night. They soon came to a decision that his behaviour amounted to serious misconduct that was likely to damage Paramounts commercial interests.

Mr Birkinshaw was summoned to a meeting where he was summarily dismissed for serious misconduct. He subsequently made an unfair dismissal application with the Fair work Commission.

Employee makes his case to the Fair work

Mr Birkinshaw decided to represent himself at his unfair dismissal hearing, making several arguments in his defense. Firstly, he contended that Paramount didn’t follow proper procedure with his dismissal. Mr Birkinshaw said that he wasn’t provided a warning prior to his dismissal. Nor was he provided the CCTV footage of the incident, which Paramount said would form part of their investigation.

Secondly, Mr Birkinshaw argued that his behaviour that night took place out of hours and at a pub, not at work. He said that he wasn’t aggressive, that the entire matter was trivial, and that his dismissal wasn’t warranted. Also, that any threats he made to delay deliveries were made in jest.

Finally, Mr Birkinshaw claimed that his dismissal was motivated by his workers compensation claim made earlier in the year. He argued that Paramount had solicited witness statements from the bar to concoct a case for his dismissal. Mr Birkinshaw also claimed that the text message sent to Paramount informing them of his behaviour had been fabricated.

“I am going to delay your deliveries and invoices”: The evidence contradicts

When assessing Mr Birkinshaw’s case, the Fair work found that there was evidence to support that his behaviour at the bar was directly connected to his employment. In evidence provided to the Fair work, Mr Birkinshaw himself even admitted that he’d asked the bar “for a free drink, on the basis that I made frequent deliveries there.”

Testimony from bar employees provided further evidence of the connection between Mr Birkinshaw’s out of hours behaviour and his employment. These contradicted his claim that his request for free drinks were made “in jest.”

One witness testified that Mr Birkinshaw leaned in aggressively and said, “I am going to delay your deliveries and invoices.” Based on witness testimony, the FWC was “satisfied that [Mr Birkinshaw] made serious threats to delay future liquor deliveries from the employer to Websters Bar.”

The Fair work Commission rules on the unfair dismissal case

Ultimately, the Fair work found that Mr Birkinshaw’s behaviour was likely to damage the reputation and/or commercial relationship between Paramount and the bar, as well as other clients. It therefore ruled that his behaviour amounted to out of hours misconduct and that he was therefore dismissed for a valid reason.

The FWC, however, did accept Mr Birkinshaw’s claim that Paramount hadn’t followed due process in notifying him of the intention to dismiss him. It found that Paramount hadn’t provided him with a chance to plead his case and show cause why he shouldn’t be dismissed.

But despite these procedural deficiencies, the Fair work ruled that Mr Birkinshaw’s dismissal was not harsh, or unjust, or unreasonable.

What can we learn from this unfair dismissal case?

In the aforementioned case, the employer provided overwhelming evidence that Mr Birkinshaw’s out of hours misconduct was detrimental to its interests. However, the interesting thing about this case is that his unfair dismissal claim was rejected despite the employer denying him procedural fairness. Procedural fairness is often a factor on which unfair dismissal claims hinge. Providing an employee the chance to respond to allegations of misconduct made against them is a protected right under Australian workplace laws.

Failing to inform an employee that they’re to be dismissed before the dismissal takes place, and denying their right to respond to allegations made against them, places them at a severe disadvantage. It means that they lose the chance to respond to and rectify their behaviour, and therefore possibly prevent their dismissal. There have been many unfair dismissal cases where an employee’s misconduct provides a valid reason for their dismissal. However, because their employer denied them procedural fairness, their dismissal is ruled as unfair.

What we can learn from Mr Birkinshaw’s case is that the Fair work will weigh up different factors. In this case, the overwhelming evidence proving Mr Birkinshaw’s out of hours misconduct damaged the interests of his employer outweighed the fact that he was denied procedural fairness.  

Conclusion to: Have you been dismissed for out-of-hours misconduct?

I remember 35 years I was pulled over by the police for speeding. While the officer was writing out the ticket, I said look at all the other cars they are going faster than me. He replied but I’ve got you. I never forgot this. At workplace parties, BBQ’s, conventions, golf days whatever. Everybody’s out of control. However the complaint comes in about you. Be careful you don’t pay the price by your dismissal for everybody, because for whatever reason they’ve got you.

If you feel you have been unfairly dismissed for out of hours misconduct, A Whole New Approach can help. We are Australia’s leading workplace advisors and commentators. In the last two decades, we’ve assisted over 16,000 employees to make an unfair dismissal claim in every state. All adverse action issues, workers rights, forced to resign, subject to toxic workplace culture, call us immediately.

Call us today on 1800 333 666 for a free and confidential conversation.

Articles similar to Dismissed for out of hours conduct: Why it happens

Unfair dismissal: Why procedural fairness matters

Workplace investigation that leads to a unfair dismissal

Unfair dismissal payout: How much can you receive?

You’re Dismissed! 12 crazy ways employees are sacked