Out of hours conduct and its impact on the employment relationship is always a hotly debated topic – particularly between employers and their employees.
Many employees hold the belief that their conduct outside of work is entirely irrelevant to their employment. However, this is not always the case as recently demonstrated in the decision of Cuculoski v Australian Transit Group T/A Buswest [2020] FWC 3361.
The employee in this case was a bus driver for a company that operated a shuttle bus service on behalf of its client, the Crown Casino in Perth.
In early February 2020, the employer received two emails from a manager at the casino regarding a complaint it had received from a patron. The patron complained that the employee, who he knew only through the shuttle bus service, had asked him for money on a promise to repay the amount the next day. The patron had loaned the employee $90 but he had not paid it back the next day as promised. The casino advised the employer that it considered the employee’s behaviour unacceptable and believed that it reflected badly on the casino.
Shortly after receiving the emails, the employer’s Chief Administration Officer arranged a meeting with the employee. During the meeting, she explained to the employee that his conduct in asking a patron for money had the potential to tarnish the employer’s commercial relationship with the casino. The Chief Administration Officer attempted to give the employee a warning letter but he refused to accept it. Instead, the employee became aggressive and abusive, and stormed out of the office.
The employee subsequently went to the casino and attempted to discuss the issue with employees there. After this incident, the casino wrote another email to the employer complaining further about the employee.
The employer was forced to apologise to its client, the casino, for the employee’s conduct.
A further meeting was called between the employee and, this time, the employer’s Chief Operating Officer. At the meeting, the employee’s conduct in borrowing money and approaching casino employees was discussed, as well as the employer’s Code of Conduct and its expectations of employees.
After the meeting, the employer concluded that the employee’s conduct was serious misconduct and his employment was terminated.
The employee subsequently lodged an unfair dismissal application with the Fair Work Commission (FWC).
In support of his application, the employee claimed that none of the conduct relied upon by the employer to terminate his employment occurred during work time. He said that he did not borrow the money while he was driving the shuttle bus, but rather, it was borrowed when he was off duty and at the casino as a patron himself.
The employee also claimed that he paid the patron back as soon as possible, noting that after he borrowed the money, he was either not working for a few days or otherwise did not see the patron at the casino.
In relation to approaching employees of the casino about his employment being in jeopardy, the employee claimed that he did not approach them while he was work. He was off duty when he went to casino to discuss his job with them. He further claimed the Chief Administration Officer had told him to sort it out with the casino, and that was why he did what he did.
Overall, the employee did not believe that he had done anything wrong.
In reaching its decision on the matter, the FWC accepted that the employee was off duty when he borrowed the money and when he approached employees of the casino about his employment, but the FWC otherwise found the employee’s evidence to be unreliable.
For example, the FWC did not accept that the employee was told to go and “sort it out” with the casino.
In relation to the employee’s submission that the misconduct occurred outside of working hours, the FWC commented that an employee’s out of hours conduct is relevant to the employment relationship where it has the potential to impact on the employer’s interests, such its relationships with clients.
In this case, the FWC said, the employee’s conduct of borrowing money from the patron (whom he knew from driving the bus) on the premises of his employer’s client damaged the relationship between the employer and the casino.
Further, the employee’s approaches to casino employees about his position resulted in more complaints about him from the casino.
The FWC stated,
It is clear the that [the employee’s] conduct damaged the interests of his employer. It damaged the relationship between his employer and its’ client the Crown Casino. In an attempt to repair that damage [the employee’s] employer was forced to repeatedly apologise to its’ client for his conduct. (at [71])
The FWC was satisfied that there was a valid reason for the employee’s dismissal and found that there were no procedural deficiencies in implementing that dismissal.
Accordingly, the dismissal was not unfair and the employee’s application was dismissed.
Lesson for employers
The employment relationship is a two-way street. Just as employers have obligations to employees, so too do employees have obligations to their employers. One of those obligations is to refrain from engaging in conduct, out of hours, that has the potential to cause damage to the employer’s interests.
In this case, despite the employee insisting that he was off the clock and his conduct should not impact on his employment, it had a significant impact on the employer’s interests and formed a valid reason for his dismissal.
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