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CAN I SACK AN EMPLOYEE FOR OUT-OF-HOURS BEHAVIOUR?

What employees get up to in their own time is their own business… right? Kerri-Ann Allen, Senior Employment Relations Adviser at Employsure explains all.

The story of a Qantas flight attendant who was sacked after an off-duty drinking session resulted in a missed shift and a $20,000 hospital stay, has many employers wondering: can I dismiss staff for their out-of-hours conduct?

The attendant in question was on a stopover in New York, where they spent an evening drinking at a popular bar. The attendant was later hospitalised, recording a blood-alcohol reading of .205 and racking up a medical bill topping $20,000. Not surprisingly, they were unable to attend their shift the next day, a 5.10pm flight to Los Angeles.

Upon their return to Australia the attendant was stood down and then red following a disciplinary process for breaching Qantas’s code of conduct and safety policies due to ‘drinking excessively’.

Unfair dismissal?

The Fair Work Commission found the dismissal was not unfair as the employee had a duty to be ‘ready and able’ to work, and although the conduct occurred out of hours, it had significantly impacted the business. An additional consideration was that the employee worked in a ‘safety critical’ position.

The commission stated that although flight attendants are on slip in an overseas port, despite being off duty, they remain subject to their employer’s policies and requirements regarding their conduct: “….the obligation to be ready and able to work at the requisite time is greater when an organisation clearly relies on the employee in circumstances where his or her absence cannot be properly remedied by a substitute person or the transfer of duties to others,” the commission said.

The ruling found that the dismissal was valid. The finding begs the question: do small business employers have the same ability to dismiss staff for their out-of- hours conduct?

Yes, but…

The short answer is yes, you can dismiss a staff member for their out-of-hours conduct. But as in most workplaces, it is rarely so straightforward. Dismissing an employee for their out-of-hours behaviour means making sure their conduct only falls within certain parameters: the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or the conduct damages the employer’s interests; or the conduct is incompatible with the employee’s duty as an employee.

What employers need to consider

Do your employees have provisions in their contracts or relevant policies outlining acceptable conduct outside the workplace? Are they aware that they are not to engage in conduct that could a affect your businesses reputation or the employee’s ability to work?

Is there a clear connection between the misconduct and the employee’s employment and does the out-of-hours conduct impact directly upon the business?

Can the situation be remedied by a substitute person or transfer of duties to another; has the conduct impacted upon the employee’s ability to fulfil their contractual obligations or safety responsibilities; how honestly and openly did the employee disclose the misconduct, and answer your questions about it? And lastly, have you followed fair process and given the employee an opportunity to respond?

Get advice

Dismissal of any kind is a difficult issue for any small business, and serious misconduct based on off-duty behaviour is especially complex. Consider talking to an employment relations advisor to get the most up-to- date advice. Employsure provides a useful range of human resources services to small businesses.

Kerri-Ann Allen, Senior Employment Relations Adviser, Employsure

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