How an employee’s out of work conduct can impact on his or her employment.

How an employee’s out of work conduct can impact on his or her employment.

This past week the Fair Work Commission Deputy President, Lyndall Dean, found that Qantas was justified in firing a flight attendant because he had breached Qantas policies requiring him to be “ready and able” to attend work the next day; he had drunk an excessive amount of alcohol while on a crew stopover in New York .

On the 20 November 2017, Mr Luke Urso had applied for a remedy in respect of his alleged unfair dismissal by QF Cabin Crew Australia Pty Limited (QCCA) a subsidiary of Qantas Airways Limited (Qantas).
The Flight Attendants’ Association of Australia had submitted that Mr Urso’s dismissal had been harsh, and that a lesser sanction should instead been imposed such as a written or final written warning. Mr Urso had previously had a good employment record and had not received any warnings.

Under s. 385 of the FAIR WORK ACT 2009, a dismissal is unfair if the Commission is satisfied, on the evidence before it, that the dismissal was harsh, unjust or unreasonable. After considering all the mitigating factors put forward by Mr Urso had put forward and the circumstances of this matter, Commissioner Dean was still unable to conclude that Mr Urso’s dismissal by QCCA was unfair and disproportionate to the gravity of the misconduct in respect of which QCCA acted.

Where an employer is confronted with ‘bad behaviour’ by an employee, such as an act of misconduct, criminal activity or inappropriate behaviour that has occurred outside working hours and place of employment, there must be a clear link between the employee’s out of hours behaviour and their employment.

In Telstra v Rose [1998] AIRC 1592, the Australian Industrial Relations Commission held that an employer can only discipline an employee for conduct engaged in outside their working hours, where the conduct was so serious that it has adversely affected: the contractual ‘workplace relationship’ between an employee and an employer. Therefore an employee’s conduct that damages their employer’s interests; and/or is incompatible with the employee’s duty as an employee, may provide a contractual right at common law for the employer to discipline or dismiss the employee,
Nowadays, many employees are increasingly working in various work environments, and the boundary between work and private life can be less clearly defined than it has been in the past. It can be legally advantageous for employers to have a code-of-conduct and a social media policy that clearly explains what will and will not be considered acceptable behaviour by their employees. Such a policy may also help protect employees to understand what would be considered a breach of their obligations as employees.

AZ Legal can advise about such a policy.