It is generally taken for granted that how an employee spends their time outside of work hours is entirely their own business. What happens when an employee’s interests outside of work start to impinge upon the workplace?
Can an employer take action, even up to dismissal?
What are the limitations on an employer’s right to intervene when an employee’s private life crosses over into their working life?
Two recent cases in the Fair Work Commission demonstrate that whilst an employer has the right to take action up to a point, they still need to be able to show that the employee’s actions outside work have a sufficient impact on the employer’s business.
The first example1 demonstrates that while an employee may have a right in some circumstances to “moonlight” to make ends meet, they still need to be completely upfront about this with their employer.
In this case, the employee, a printer at The West Australian, also held a second job as an Uber driver. The employee’s second job first came to the employer’s attention when he somewhat unluckily picked up one of his managers while on sick leave.
The employer subsequently held a meeting with the employee, during which he was told he needed to obtain permission to hold a second job. The employer also raised concerns that the Uber job could interfere with the employee’s fitness for work and ability to carry out his duties as a printer, and requested information regarding the hours the employee had been driving for Uber in the previous six months.
The employee’s response was to deny that he in fact held a second job. Rather, he said his wife had a contract with Uber and he assisted her on Saturdays when she needed it and did not receive any remuneration for doing so. The employee was asked to supply evidence in support of his assertions, but he declined on the basis that he did not own the records.
The employee was eventually dismissed after continually denying he was employed as an Uber driver and refusing to provide any records. The employee lodged an unfair dismissal claim, but the Commissioner ultimately found that the dismissal was fair, observing that the employee was unreasonably obstructive in responding to the employer’s requests for information and had been “the architect of his own demise”.
In reaching this decision, the Commissioner noted that the employer had tried to resolve things with the employee, but the employee had continued down a path of “actively denying the truth and deliberately misleading his employer”. By refusing to obtain permission from the employer to hold a second job, the employee had also breached the employer’s Code of Conduct and the terms of his contract.
In the second case2, an employee’s poor judgment during his lunchbreak shows that an employer’s disciplinary action must be proportionate to the impact of an employee’s conduct (even outside of work).
The employee in this case had been employed for 12 years and also happened to be an internationally renowned competitive target shooter.
In July 2015, the employee arranged to meet his friend, who was also a keen competitive target shooter, for lunch. The friend often sought out the employee’s advice on how to improve as a shooter, and on this occasion, she had hoped to discuss an accessory she was going to buy for her rifle.
Unfortunately for the employee, the friend decided that the best way to ensure the accessory would fit her rifle correctly was to take her rifle with her to show the employee (which she neglected to mention to him before the meeting). After purchasing the accessory, the friend drove to the suburb where the employee’s office was located. However, as she could not find parking, the employee agreed to give her access to the secure car park of his office building.
Once in the car park, the friend opened the boot of her car to show the employee her rifle. Not surprisingly, within a period of two minutes, a large contingent of police arrived on the scene. The employer became aware of the incident when police escorted the employee back to his office so he could show them his identification.
Although the employee was not charged, a subsequent disciplinary meeting was held by the employer, in which a series of questions were put to the employee. The employee denied any wrongdoing or that there were any safety risks associated with his conduct.
After considering the employee’s responses, the employer determined that its trust in the employee’s judgement had been severely damaged, and as a result, his employment was summarily terminated for serious misconduct.
In the subsequent unfair dismissal hearing, the employee sought reinstatement, submitting that he had not wilfully or deliberately asked his friend to bring a firearm on to the premises, and had not been aware she was carrying a gun. He also criticised the employer’s investigation into the incident that led to his dismissal as being flawed and unjustified.
In contrast, the employer submitted that the employee’s actions had contravened various policies and procedures and had resulted in repercussions for the employer from the building owner. Specifically, the employer submitted that the presence of the rifle had “created a serious risk to the health and safety of people in the vicinity, and the reputation, aviability and profitability” of the employer’s business (matching the statutory definition of serious misconduct) and the employee had ultimately refused to accept responsibility for his involvement.
Interestingly, the Commission ultimately found that although the employee’s actions constituted an “unambiguous basis to justify dismissal with notice”, they did not add up to an act of deliberate serious misconduct that would warrant dismissal without notice. Rather, the Commission observed that while the employee was certainly guilty of a serious error of judgment, his actions “did not have the characteristics of an attack upon the employment relationship”. On that basis, the employee’s claim was upheld and he was awarded four weeks’ pay (being what he would have received had he been dismissed with notice).
These cases demonstrate that if an employee’s activities outside of work begin to impact on the workplace, employers still need to tread carefully in terms of how far they can take action to discipline employees.
In the first case, the dismissal turned more on the fact that the employee was dishonest with his employer rather than the fact he held a second job, and the employer was also supported by the fact it had clear policies in place that required the employee to first seek the employer’s written consent.
In the second case, the employee may have exhibited poor judgment which affected the employer’s confidence in him, but the lack of deliberate intent behind his actions mitigated the seriousness of his misconduct.
As the line between our work lives and private lives becomes increasingly blurred, employers will no doubt face many more challenging situations such as the ones dealt with in these cases.
If you would like to know more, please contact the Lavan Employment and Safety team