Dismissed for out of hours serious misconduct? We explain.

Receiving a dismissal for out of hours serious misconduct is a situation many Australian workers have found themselves in. Often, the line between working hours and after hours is blurred. It isn’t clear if serious misconduct that takes place in the latter can result in a dismissal. In this article, Dismissed for out of hours serious misconduct? we try and make the situation for clear for you, to work out whether your unfair dismissed or not. The moral is to avoid these circumstances to begin with.

So, when can out of hours serious misconduct result in a fair dismissal, suspension or other punitive measures? Australia’s courts and tribunals continue to grapple with this question, with differing results. The specific laws that apply to a given case, and the nature of the serious misconduct, are the key variables that decide if an employee must face the consequences for out of hours misconduct.

Employers make the decision to dismiss early

When a employer wants to discipline an employee over poor performance, being late whatever, its usually by degrees. That what warnings are for. We notice with serious misconduct employers seem in most cases to have come to a predetermined view. Hence some act like the FBI. In fact in some large companies ex police are employed as investigation or loss prevention officers. Old habits die hard as they say and they think everybody is guilty and has to go.

This approach is inherently unfair. The Fair work Act basically says you are entitled to a process that’s fair. This can be complicated, what’s fair to one is not to another. Get advice at the earliest possible stage

Today we’ll look at two cases that involved out of hours serious misconduct. Each ending with markedly different punitive consequences for the employees in question. By knowing the details of these cases, you will better understand the factors that determine when out of hours conduct warrants punitive measures.

Here are the rules around out of hours serious misconduct

Public servant placed on suspension for out of hours serious misconduct

In May 2022, the Queensland Industrial Relations Commission (QIRC) ruled that a Queensland government department was within its rights to place an employee on suspension without pay for out of hours serious misconduct. The employee had been accused of five counts of sexual assault which took place while he was moonlighting as a ride share driver.

The employee had made an appeal with the QIRC regarding his employer’s decision, arguing it was unfair on several grounds. He contested that the department had denied him procedural fairness. That his suspension wasn’t “legally reasonable.” Also, that his alleged sexual assault offences didn’t relate to his work and that his employer had denied him a presumption of innocence.

How does the law regard public sector employees and out of hours serious misconduct?

Industrial Commissioner Catherine Hartigan found that the employer had not decided to suspend the employee based on a belief of his guilt. Rather, it was a decision made in line with the law relating to the out of hours misconduct of public sector employees.

“… s187(1)(b) of the [Public Service Act] specifically provides grounds for discipline against a public service employee. This ts where they have engaged in misconduct in a private capacity, namely inappropriate or improper conduct in a private capacity which reflects seriously and adversely on the public service,” said Commissioner Hartigan.

“Having regard to the information before the decision maker, I consider that it was available on the evidence before [them] to form a reasonable belief that the [public servant] is liable to discipline under a disciplinary law.”

“Ultimately, it is not necessary to establish that there is a causal nexus between the workplace and the alleged offending conduct to establish a ground for discipline in accordance with the PS Act.”

Can an employee be dismissed for out of hours serious misconduct?

In the aforementioned case, the employee’s unpaid suspension was considered fair due to the provisions contained in the Public Service Act. But when it comes to private sector employees, cases are viewed through a different lens.

The Fair Work Commission states that “it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees”. And for out of hours serious misconduct to warrant dismissal, the misconduct “must have a relevant connection to the employment relationship.”

The seminal legal precedence used to determine many unfair dismissal cases is Rose v Telstra Corporation Limited (1998), which involved a Telstra employee who had an out of hours physical altercation with a colleague. This case established that valid termination of an employee’s employment could take place when:

• The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer; or
• Further the conduct damages the employer’s interests; or
• The conduct is incompatible with the employee’s duty as an employee.

Reputational damage

With respect to out of hours serious misconduct causing reputational damage, the burden of proof lies on the employer. They can’t simply say that reputational damage has occurred or that the employee’s ability to perform their duties has been compromised. The employer must provide material evidence.

Let’s take a look at the events of Rose v Telstra. How the Australian Industrial Relations Commission (AIRC) came to a ruling on whether the employee was subject to an unfair dismissal.

Telstra employee gets into out of hours melee with work colleague

In November 1997, Mr B. Rose, a Telstra Communications Officer based in Tamworth, temporarily located to Armidale to assist the local Telstra branch. On his third night in Armidale, Mr Rose and a Telstra colleague, Carl Mitchell, visited a local nightclub after several hours of drinking. Critical to this unfair dismissal case is that the duo were not in their Telstra uniforms, nor were they on call.

While at the nightclub, Mr Rose lost track of Mr Mitchell, and went looking for him. “I found him at the bar having an argument with a person we both knew,” Mr Rose told the AIRC. “I tried to appease Carl but he told me to ‘f**k off.’”

After the exchange, Mr Rose walked away and was quickly followed by Mr Mitchell. Mr Rose then told his colleague that he didn’t need to “fight these fellows”. That he would have words with him later. Mr Mitchell subsequently left the nightclub at 2:30AM and returned to his hotel room. Which he was sharing with Mr Rose, who made his way there half an hour later.

“I can do you any time I like, mate:” All hell breaks loose in the hotel room

Mr Rose met a woman called Lee on the way to the hotel room, and when they arrived, he asked Lee to wait outside so he could have “a word with his mate inside”. Once inside, Mr Rose rearranged the furniture to create space in the middle of the room, before telling Mr Mitchell, “Well, that’s your boxing ring if that’s what you want, mate.”

“I went to the room,” recalled Mr Rose, “I pushed a bed aside and said to Carl. ‘I thought you were my mate. I thought you were a friend. If you want to fight you can stand up and fight like a man.’ I said that 3 or 4 times”.

At this point, Mr Mitchell approached Mr Rose and placed his arm around him and said, “I can do you any time I like, mate”. To which Mr Rose replied, “Go ahead and do what you like.” Then, all hell broke loose. Mr Mitchell went over to the window and thrust his fists through the glass, which promoted Mr Rose to act accordingly.

“I grabbed a bed and tried to push it between the two of us,” recalled Mr Rose. “He got around it and I was able to push him to the ground. Lee came into the room and I told her to get out. Carl struck me in the chest with a piece of glass.”Mr Rose then bolted out the door, grabbed Lee and ran downstairs. He subsequently called an ambulance, and once at the hospital, received 12 stiches to his injury.

Employment with Telstra was terminated

Mr Mitchell was later convicted of malicious wounding and sentenced to four months imprisonment, and subsequently resigned from Telstra. After an internal investigation, Mr Rose’s employment with Telstra was terminated. He subsequently made an application for relief in respect of termination of employment with the AIRC, alleging an unfair dismissal.

The AIRC rules on the unfair dismissal case

At the AIRC hearing, Telstra contended that the incident involving Messrs Rose and Mitchell amounted to improper conduct. Therefore on that basis, the former was terminated. Telstra’s chief argument was that because the serious misconduct took place in a hotel room paid for by Mr Rose’s travel allowance, the incident was therefore within the scope of his employment.

The AIRC, however, disagreed. It found that there was no sufficient connection between the incident and Mr Rose’s employment duties. The AIRC highlighted that he hadn’t been waring his Telstra uniform at the time and hadn’t been on call. It also found that because the incident took place in a hotel room (i.e. not a public place). It was very unlikely that it caused any reputational damage to Telstra.

For these reasons, the AIRC determined that Mr Rose was harsh, unjust and unreasonable, and therefore he had been unfairly dismissed.

Conclusion to Dismissed for out of hours serious misconduct? We explain.

When the line between an employee’s work hours and their private life are blurred. It’s often difficult to determine if their after hours conduct comes under the purview of their employer. If you have been dismissed for out of hours misconduct, we can help you determine whether your employer was within their rights to terminate your employment. And if they weren’t, we can help you make an unfair dismissal claim to seek reinstatement or compensation. All matters relating to Fair work Australia and workplace investigations Call us now. Casual workers rights, employment rights , being forced to resign, toxic workplaces we will help you.

Feel free to call our expert team on 1800 333 666 for a no obligation, confidential conversation about how we can help you seek justice for your unfair dismissal. We are not lawyers but the nations “go too” representatives for advice. AWNA are proud of their staff and the outcomes we get for our clients.

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