‘You eejit!’: coding the line between work and play

To what extent is off-duty behaviour during work travel governed by the APS code of conduct? The exact dividing line between work and play, as usual in workplace matters, can be a murky one.

Keen-eyed employment lawyers were treated to an interesting read last month, with the Fair Work Commission holding that an employee sacked for groping a waitress while on work travel was not unfairly dismissed. Commissioner Cloghan’s judgment featured a number of quotable lines, describing the applicant as an “eejit” and suggesting that he had “not fully recovered from the disease of ‘youth'”.

Frivolities aside, the decision raises a number of important questions with relevance for both the private and public sector. The significance of the broader issue at hand — to what extent will behaviour outside the workplace be considered misconduct? — is amplified by 2013 changes to the APS code of conduct.

In the de-identified matter of Applicant v Employer, an employee had been temporarily accommodated at a hotel by his employer. Following allegations that the employee sexually harassed a bartender at the hotel restaurant by “groping her bum”, the employee was swiftly stood down pending an investigation and later terminated.

In finding that the dismissal had not been unfair, and that instead “the Employer had a valid reason to terminate … a reason that was sound, valid and defensible”, the commissioner considered a range of factors that located the actions within the scope of employment.

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