When will an employee’s “out of hours conduct” be a valid reason for dismissal?

An employer generally does not have any right to direct how an employee conducts themselves outside of their employment. For an employee’s “out of hours conduct” to be a valid reason for dismissal, the conduct must have a relevant connection to the employment relationship.

In the recent decision of Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations / Warkworth Mining [2016] FWC 6018, Commissioner Saunders of the Fair Work Commission (FWC) has considered the factors which go to establishing a relevant connection between an employee’s out of hours conduct and their employment, and whether such conduct was a valid reason for the employee’s dismissal.

Background

Mr Kedwell was dismissed by his employer, Coal & Allied Mining Services Pty Ltd (Mt Thorley) following its investigation of an incident where Mr Kedwell and two other employees (Mr Fay and Mr Neuss) were alleged to have deliberately driven their cars in such a way to prevent another employee (referred to as X) from being able to make a right hand turn off the Golden Highway on his way home from work.

Mt Thorley contended that Mr Kedwell engaged in this conduct in breach of his obligations under its Code of Conduct and Anti-Discrimination, Sexual Harassment and Bullying Policy.

Mr Kedwell argued that his involvement in the incident was not intentional, lodging an application for relief from unfair dismissal.

The key issue for consideration by the FWC at the hearing of the matter was whether there was a valid reason for Mr Kedwell’s dismissal, including whether the alleged conduct had occurred, whether the conduct fell within the scope of Mt Thorley’s policies and whether the conduct had a relevant connection to his employment.

Did the conduct occur?

After considering the evidence concerning the factual circumstances of the incident presented by both parties, Commissioner Saunders concluded that:

X had been subject to prior unreasonable behaviour in the workplace. In particular, earlier in the day on the day of the incident, Mr Neuss and Mr Fay threw rags at X. Mr Kedwell was not involved in the previous incidents.

In respect of the incident on the Highway, Mr Kedwell acted intentionally, together with Mr Neuss and Mr Fay, to prevent X from being able to turn off the Highway.

Further, Mr Kedwell acted intentionally under a “plan or an agreement” t that had been made with Mr Fay and Mr Neuss outside of the bathhouse at the site at the end of their shift, prior to their leaving the workplace on the day of the incident.

Was the conduct within the scope of the policies?

The Code of Conduct applied to all employees, contractors, suppliers and consultants of the company when on (or purporting to be on) company business, company property or attending functions, social and otherwise, organised by or in connection with the company.

The Anti-Discrimination, Sexual Harassment and Bullying Policy applied to the conduct of employees:

in the workplace (even outside normal working hours);
during work activities (for example when dealing with other employees or suppliers and external parties or during work related travel or training activities);
at work-related events (for example at social functions); and
could extend to the private use of social media if there was a sufficient connection to the workplace or other people at work.

Commissioner Saunders found that Mr Kedwell’s conduct in intentionally preventing X from turning off the Highway did not fall within the scope of, and therefore did not contravene, either of the policies.

However, the agreement or plan made by Mr Kedwell, Mr Neuss and Mr Fay was conduct that occurred on Mt Thorley’s property (outside of the bathhouse at the site) and was therefore within the scope of both policies.

Did the conduct have a relevant connection to the employment?

Regardless of the fact that Mr Kedwell’s conduct on the Highway did not fall within the scope of, and therefore did not contravene, the relevant policies, Commissioner Saunders found that Mt Thorley was still entitled to have regard to that conduct in asserting that it had a valid reason to terminate Mr Kedwell’s employment, because the conduct had a relevant connection to Mr Kedwell’s employment.

In considering the factors that established a relevant connection to the employment in this case, Commissioner Saunders found:

the plan or agreement to engage in the conduct on the Highway was made at the workplace after the conclusion of day shift on the day of the incident;
the harassment of X on the Highway was a continuation of the unreasonable conduct to which X had been subjected to earlier on the day of the incident;
the conduct on the Highway took place on the way home from work, where if an injury had occurred, would have amounted to a “journey claim” under workers’ compensation legislation for which Mt Thorley would have been liable. Accordingly, there was a risk of damage to Mt Thorley’s interests;
the conduct on the Highway had an impact on the relationship between X and each of Mr Kedwell, Mr Fay and Mr Neuss; and
Mt Thorley had a legitimate concern to act on the incident and to ensure that no similar incidents take place in the future, particularly where the incident occurred on a public road in reasonably close proximity to the mine and where there was a real risk of the employees involved and other members of the public being seriously injured. It followed that the incident had the potential to adversely affect Mt Thorley’s reputation.

Was there a valid reason for dismissal?

Commissioner Saunders ultimately found that Mt Thorley had a sound, defensible and well-founded reason to dismiss Mr Kedwell on the basis of his conduct:

first, in entering into a plan or agreement at the workplace to intentionally prevent X from turning off the Highway which constituted a clear and patent breach of company policies; and
further, in intentionally preventing X from turning right off the Highway, which was unreasonable conduct with a sufficient connection with Mr Kedwell ’s employment.

The application was dismissed.

Lessons for employers

In light of this recent decision, when an employer is considering dismissing an employee for out of hours conduct, the employer should have regard to: