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Out-of-hours conduct sufficiently connected with employment? The Commission “draws the line” in a recent unfair dismissal case

A recent unfair dismissal case has further explained where the Fair Work Commission “draws the line” on when out-of-hours conduct is sufficiently connected with employment to provide a valid reason for an employer to dismiss an employee for out-of-hours conduct.

On 10 March 2021, following a compulsory Workshop that ended at 4pm, the employer had organised a social event for employees, the “Sundowner”. Some of the features of the “Sundowner” event included:

  • optional attendance;
  • employees were not paid for this time if they chose to attend;
  • employees wore smart casual dress, not uniforms;
  • there was no employer signage or branding, but employees were encouraged to gather at a particular section of the main bar;
  • employees had a wristband identifying them as the employer’s guests so they could obtain free drinks at the bar; and
  • the employer’s bar tab closed at around 7pm.

The employer terminated the employee’s employment after 35 years of service following his involvement in two incidents on the evening of 10 March 2021. The Deputy President found that “Incident One” was a valid reason for dismissal, which should be contrasted with “Incident Two” which was not a valid reason for dismissal.    

“Incident One” – a valid reason for dismissal

“Incident One”, where the employee inappropriately touched a female employee, took place at the same venue where the “Sundowner” had occurred. The incident took place at 9.45pm which was several hours after both the Workshop had ended and also after the subsequent “Sundowner” had concluded.

The Deputy President noted that the two employees in question, whilst both employed by the same employer “were only at this location in the company of each other as a consequence of their attendance at the Workshop and the Sundowner in the course of their employment.”

The Deputy President concluded that given the incident occurred only a few hours after the “Sundowner” had formally ended and at the same venue, the time during which the incident occurred was “an extension of the Sundowner”. The Company’s Sexual Harassment Policy was applicable and arguably so was the Company’s Discrimination, Harassment and Bullying Policy.

The Deputy President held that the misconduct of the employee was a valid reason for the employee’s dismissal.

“Incident Two” – not a valid reason for dismissal

“Incident Two” involved the employee verbally abusing another employee. This incident took place outside a Casino Complex more than 1km away from the venue of the “Sundowner”, at about 10.30pm. In addition to more time having passed since the Company’s organised events, other features of this incident included: both employees had travelled to other locations after they left the venue of the “Sundowner” before meeting at the Casino; when the incident happened both employees were on their way home; the employees did not know one another; and neither employee was identifiable as being connected with the employer.

In the circumstances, the Deputy President was not satisfied that the employee’s conduct in this incident was sufficiently connected to his employment to be a valid reason for his dismissal.

Key take-away   

This case again shows that in determining if out-of-hours conduct is a valid reason for dismissal, the primary consideration is whether the conduct has a sufficient connection to the employment.

In addition, this case is also a reminder for employers to give consideration to the scope of their policies and whether they appropriately extend beyond the “four walls” of the employees’ usual work location and working hours.

 John Keron v Westpac Banking Corporation [2022] FWC 221 (4 February 2022)

If you would like more information about the case, please contact our office on +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.

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