Employee conduct outside of workplace increasingly a reason for termination

It is increasingly common for remedies to be sought by employees who have lost their jobs due to their conduct outside of the workplace.

A series of recent cases have highlighted the need for employers to proceed carefully when dealing with these situations. These cases also demonstrate that such conduct can, in many circumstances, be inconsistent with employment obligations.

This article does not address staff conduct at sporting or social events endorsed or conducted by the employer – that is a whole other article – but is limited to conduct outside work (on any view).

Examples where activities outside of work may impact a staff member’s ongoing employment could include:

• dishonesty in an organisation such as church, school, or charity unrelated to the employer
• behaviour at public functions or on social media which may damage the employer’s “brand”
• violence in a family situation, as we discuss in the case below.

Much will depend on the employee’s employment duties and responsibilities.

A recent decision of the Industrial Relations Commission of New South Wales is a reminder of the main issues relevant here.

Key facts

The critical facts were that the 63-year-old former employee had worked for approximately three decades as a solicitor with legal aid. He was a solicitor advocate, a senior position within the organisation.

In June 2016 he was involved in a domestic violence incident with his wife in their home, an incident which was witnessed in part by their daughter. He was ultimately convicted in the Courts and on the dismissal of his appeal against conviction it was found by the District Court Judge dismissing that appeal, that he had hit his wife on at least one occasion to the face and eye area and placed his hands around her throat and “in effect choked her” causing injury to her. The finding of guilt was upheld and a bond issued.

After giving him an opportunity to respond to a carefully drafted letter his employment was terminated.

The employee’s case

The former employee brought proceedings in the Industrial Commission of New South Wales (unsuccessfully) arguing that the dismissal was either harsh, unreasonable or unjust.

Part of the case conducted for the former employee was that “there was an insufficient nexus between his position and the misconduct”. The Commissioner noted this “was not put on the basis of the misconduct having occurred outside of work hours”. Rather, it was put as follows:

“The applicant’s submissions were to the effect that Legal Aid had placed undue reliance on its status as an advocate in promoting awareness and prevention of domestic violence, given that the applicant was not directly involved in Legal Aid’s domestic and family violence programs. The applicant gave evidence that the vast majority of his work for Legal Aid involved drug‑related crime, including armed robbery, in the District Court.”

The decision

The Commissioner held, that taking the evidence as a whole, he did not accept that submission. Namely that, given the nature of his work, there was a sufficient nexus between his employment and his misconduct, commenting:

“Focussing only on the work performed by the applicant in the Criminal Law Division ignores the broader organisation commitment that Legal Aid has to address in domestic and family violence, as well as the applicant’s admitted responsibility, as a senior employee, to promote awareness and prevention of domestic violence.”

The Commissioner also found that “Legal Aid has a legitimate interest in protecting its reputation” in that, in the context of Legal Aid’s organisation and activities, his conduct had “the potential to bring Legal Aid into disrepute given the disturbing criminal acts of which he was found guilty and the serious nature of the crime”, commenting “I do not accept the applicant’s submissions that the risk of damage to Legal Aid’s reputation was overstated”. The Commissioner found, in weighing all of these matters, the dismissal was not unreasonable.

Citation

The case is William James Sandilands v Industrial Relations Secretary on behalf of Legal Aid NSW [2018] NSWIRComm 1051 (28 August 2018).

Lessons for employers

• termination of employment for non-work conduct can be lawful and not harsh, unreasonable or unjust
• in these circumstances employers should “hasten slowly” and seek advice at an early date so the employer and the advisor “think through” fairly carefully the basis on which the relevant nexus is to be asserted
• an open mind should be retained until the employee has had a genuine and fair opportunity to respond to the employer’s concerns
• background documents such as codes of conduct, role descriptions or duty statements, and communication to employees of the importance of the employer’s reputation in particular areas of conduct can be relevant to determining whether the nexus has been established.

Authors: Rachel Drew & Andrew Knott

Contacts:
Melbourne
Charles Power, Partner
T: +61 3 9321 9942
E: charles.power@holdingredlich.com

Benjamin Marshall, Partner
T: +61 3 9321 9864
E: ben.marshall@holdingredlich.com

Sydney
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
E: stephen.trew@holdingredlich.com

Michael Selinger, Partner
T: +61 2 8083 0430
E: michael.selinger@holdingredlich.com

Brisbane
Rachel Drew, Partner
T: +61 7 3135 0617
E: rachel.drew@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. 

Published by:

Rachel Drew

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