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.
Of note, the employee was accommodated at his employer’s expense, at a hotel regularly used by the employer with which it had a “longstanding arrangement”, and was socialising with other work colleagues at the time. These factors contributed to a conclusion that:
“… to cut to the chase, the only reason why the Applicant was in the hotel at the time of the incident was because of the employment relationship he had with the Employer.”
This seemingly simple conclusion is apt to mislead, though, and particularly in the public sector context the reality is rather complex. To begin with, the APS code of conduct mandates that Commonwealth government employees must act in a certain manner — everything from behaving with integrity to complying with all Australian laws — “in connection with” their employment. This reflects a change from the previous wording, regulating conduct “in the course of employment”, an amendment the Public Service Commission relevantly described as providing “more certainty when dealing with suspected breaches that occurred on work-related travel or training”.
Yet, as the commission continued: “Public servants are entitled to a private life and the amendments are not intended to allow the code to regulate every aspect of that private life.” Where, then, does off-duty conduct during work travel fit?
The relevant test, explicated in Rose v Telstra, is that the conduct must objectively be “likely to cause serious damage to the relationship between the employer and employee” or “conduct that damages the employer’s interests” or “conduct that is incompatible with the employee’s duty as an employee”. In sum, the conduct must “be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee”. Beyond this, regardless of what overzealous investigatory officials may allege, the Commonwealth has no right to regulate the out of hours conduct of their employees.
As occurred in Applicant v Employer, a factual analysis will be required to determine the connection with employment and whether the Rose test will be satisfied. If a public servant were to conduct themselves while on work travel, after hours, in a hotel of their choice, and that misconduct had no relationship to their employment, it would seem to stretch the necessary connection to breaking point. If, on the other hand, an APS official sexually harassed a colleague after hours at a hotel bar during the course of a multi-day work conference, such misconduct would likely seriously damage the employment relationship.
The exact dividing line, as it so often is in public sector employment matters, remains somewhat murky. Because the law is delicately trying to balance legitimate public interests with the need to protect APS employees from unjustified intrusions into their private lives, particular factual situations will often heavily influence the side on which justice falls. As was observed in McManus v Scott-Charlton, caution:
“… should be exercised when any extension is made to the supervision [allowable by] an employer over the private activities of an employee. It needs to be carefully contained and fully justified.”
In the absence of further judicial guidance as to the exact contours of “in connection with employment”, common sense is an important friend to avoid being publicly labelled an “eejit”.
More at The Mandarin: Misconduct investigations: to disclose or not to disclose?