4 November 2015

​Can you sack a race-goer behaving badly?

As punters rest their weary heads the morning after Melbourne Cup, perhaps few will be regretting their race-day antics as much as the “girl in the blue dress”. It is likely that among the millions of people who have seen the footage of the woman pushing a police officer into a garden is her employer, no doubt aghast at her actions.

No employer wants to be associated with an employee behaving badly, but when such behaviour happens “outside of work”, a number of factors need to be addressed in answering the question: What can I do about it?

  • Is the behaviour really “outside of work”? Misbehaviour at a work-related event will often not be “outside of work” for the purposes of certain legislation. This will make it easier for an employer to demonstrate a link between an employee’s misconduct and the workplace, and take disciplinary action accordingly.
  • What does the contract say? A contract which allows disciplinary action to be taken against employees whose conduct (no matter the context) might threaten their employer’s reputation will provide a stronger foundation for acting on misconduct out of work. Contracts should also allow disciplinary action to be taken against employees charged or convicted with criminal offences which compromise employees’ ability to perform their duties or the organisation’s image.
  • Is after-hours conduct addressed in relevant policies? Organisational policies (including those dealing with social media use and behaviour and culture) should reinforce contractual protections by spelling out types of unacceptable behaviour, explaining why such behaviour may affect the organisation, and detailing possible disciplinary consequences.
  • What are the possible reputational consequences? The extent to which an employee’s after-hours misconduct might affect an organisation’s reputation is a yardstick by which disciplinary action should be measured. An employer should also consider whether a link can be made between a misbehaving employee and his or her employer by witnesses. Given the significant media attention the “girl in the blue dress” has received, in the right contractual and policy context, a stronger disciplinary response (up to and including termination of employment) may be warranted. In contrast, a scuffle at a local pub witnessed by few might be better addressed with a warning.
  • Always be willing to listen. An employee should always be given a genuine chance to explain his or her behaviour before a decision with respect to disciplinary action is made. Any disciplinary action taken should be about protecting the organisation, not punishing the employee.

How out-of-work misconduct is dealt with will always be specific to the circumstances and is likely to involve even greater complexities than dealing with misconduct at work. If you’re in need of guidance in this area, give one of the PCS Team a call on (02) 8094 3100.

Posted in Legal Advice & Consulting.
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