Though an employer cannot control what an employee does away from the workplace, out-of-hours conduct may justify disciplinary action, including dismissal, where there is a sufficient connection between the conduct and the employment relationship.
To determine whether there is a connection to the workplace you need to take the following into consideration:
• is the conduct likely to cause serious damage to the relationship between the employer and employee;
• does the conduct damage the employer's interests; or
• is the conduct incompatible with the employee's duties.
Violence or other serious misconduct involving colleagues may justify dismissal where it undermines workplace safety, trust and confidence.
In a recent case before the Fair Work Commission the Commission considered whether the dismissal of an employee following a physical altercation with a colleague after a work Christmas function was harsh, unjust or unreasonable.
The altercation took place after a Christmas gathering of employees, though it was not organised by the employer. In finding that there was sufficient connection to the workplace, the Commission found that the altercation occurred shortly after the work function, at a location near the workplace, and involved employees who had attended the function together.
The Commission also found that the altercation had ongoing effects had consequences for workplace safety, wellbeing and working relationships as the other employee involved felt unsafe working with the dismissed.
In those circumstances, the Commission concluded the conduct was likely to cause serious damage to the employment relationship, and was inconsistent with the employee's contractual and workplace obligations. The dismissal was therefore not found to be unfair.
However, not all incident away from the workplace should be treated as serious misconduct. If you have any questions about this issue contact Andrew.