The following article taken from ‘Workplace Express’ provides some excellent examples of recent case law concerning a number of decisions regarding unfair dismissal claims in relation to a range of employee activities. The decisions illustrate the importance of establishing sound policy and procedure – which is procedurally fair and transparent within your workplace.MP900305711[1]

A former long-serving member of the national IR tribunal has drawn lessons from recent case law involving the intersection of employees’ out-of-hours conduct and their working lives, saying they provide “real-life examples of what not to do in the question of the clash between work and private life”.

Greg Harrison, now a part-time consultant to law firm People & Culture Strategies after retiring from the then FWA last year, told a Queensland IR Society breakfast on workplace drug testing in Brisbane last month that he started from the premise that testing is “a fact of life” and that there has always been an overlap between work and activities outside work “and it is unavoidable”.

It has become a more pressing issue because of the growth of social media and the “increasing imperative” for employers to meet their obligations under workplace health and safety legislation, he said.

He said those obligations “go to the heart of drug and alcohol testing”, but “also clash with the legitimate concerns of employees about their privacy”.

Harrison drew lessons from seven cases involving controversy flowing from employees’ out-of-hours conduct.

Harrison said that this year’s Bell v Boom Logistics decision (which has now been appealed and cross-appealed) involved the employer dismissing two workers for alleged bullying incidents, one of which occurred in employer-provided housing the employees shared with their partners.

One of the reasons cited for dismissing the employees included “harassing and intimidating another employee and his girlfriend in the [employer-provided] housing, as well as behaving in a completely inappropriate fashion in [another] employee’s house and kitchen, including being involved in the removal, waste and/or destruction of that employee’s food without permission. . .”.

Harrison said Commissioner Susan Booth had found that overall the dismissal of the employees was unfair, because the events in the house didn’t constitute a valid reason.

She rejected the employees’ view that out-of-hours conduct wasn’t relevant, citing the 15-year-old authority in Rose v Telstra, but distinguished it from the case at hand, saying the conduct was unlikely to cause serious damage to the relationship between the employer and employee.

Commissioner Booth also found that the employees’ after-hours conduct, “not at the workplace and as an invited guest in a private dwelling is not relevant to an employee’s duty as an employee, even if it damaged relationships among the employees concerned”.

Harrison said the lesson in the Bell case is that while employers have a role in regulating employees’ out of hours conduct, they must take into account the test in Rose v Telstra, “namely, it is clear in certain circumstances that employees’ employment may be terminated validly for out of hours conduct, but [in] such circumstances, the conduct must be viewed such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and the employee, the conduct damages the employer’s interest, or the conduct is incompatible with the employee’s duty as an employee”.

“In practice, this means that employers must make an assessment about whether the alleged out-of-hours conduct is inconsistent with their employment.

“This will be particularly important when employees have regular contact outside of their employment, due to their living or social arrangements,” he said.

In the second case, the celebrated Comcare v PVYW matter, in which a worker was injured when having sex with a “friend” during a work trip, the full Federal Court held that she was entitled to workers compensation, and that it could only be refused if there was gross misconduct, and engaging in sexual intercourse was not.

He said the lesson in the Comcare case, at least until any High Court ruling, is that workers compensation is available for a significant range of out of hours conduct.

Employers might need to take care to define the boundaries of what constitutes serious misconduct in order to minimise their workers compensation liabilities, he said.

The third case, Applicant v ACT Department of Education and Training, involved a finding by Commissioner Barbara Deegan that an employer’s deduction from a teacher’s salary to penalise her for deliberately adding students to her Facebook account, breaching the employer’s code of conduct.

The ACT Department of Education had a code of conduct on use of social media, and Commissioner Deegan said the employer’s disciplinary action was an appropriate response.

The lesson in the ACT Education case, according to Harrison, is that “to effectively regulate the use of social media outside the work context, it might be appropriate to introduce a social media policy that sets out clear boundaries”.

The fourth case, Mayberry, involved a Subway employee dismissed after she requested her holiday pay.

The employer had received an anonymous email, showing her dressed as a cardboard car, partly made up of Subway materials such as paper cups. The employer became aware of the use of its property when it saw a Facebook photo that been posted by someone other than the employee.

FWC Commissioner Alastair Macdonald found no valid reason for dismissal, and no evidence of “irreparable damage” to the employer.

Harrison said the lesson to draw from Mayberry is that “in the context of an unfair dismissal claim, it might be necessary to show there has been damage done to the employer by an employee’s out of hours conduct in social media”.

“In the absence of such proof of any damage it is pretty difficult to substantiate a claim of valid termination.”

In the fifth case, Daley v GWA Group Ltd T/A Dux Hot Water, FWC Commissioner Deegan found unfair the automatic dismissal of an employee who breached the company’s drug and alcohol policy when she had a 0.076 blood alcohol level.

Commissioner Deegan said the company’s policy permitted three breaches before dismissal, so sacking the employee was harsh.

Harrison said the lesson from the Dux case is that employers must have a fair, consistent and non-punitive drug and alcohol policy.

In the sixth case, Day v Sodexo, Commissioner David Steel found the employer took an inconsistent approach to testing and ruled there was no valid reason for dismissal.

Sodexo told the FWC it had informed employees of the details of a revised policy to deal with positive alcohol readings, but Commissioner Steel said the evidence showed both managers and workers had “less than a comprehensive knowledge” of the policy procedures.

Harrison said the lesson from Day v Sodexo is that for any drug and alcohol testing regime to be successful, the employer must gain the trust of workers, including that they will be notified of any changes to the policy during its life.

In the seventh case, Murphy v Patrick Stevedores, one of Harrison’s decisions when he was a tribunal member, the then commissioner found Patrick had a valid reason to dismiss an employee for refusing to take a drug test and then leaving the workplace without permission.

He reinstated the employee after finding the dismissal harsh, because there was no transparent process for selecting employees for random testing, resulting in the employee being tested twice in a week.

However, he didn’t order the employer to reimburse the employee’s 12 months of lost wages, saying this was a “serious penalty” on him for his “overreaction to the issue which confronted him”.

Harrison told the Brisbane breakfast that the lesson in the Murphy case is that a credible, transparent system of testing shouldn’t result in random testing of an employee twice in a week.

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