The courts have recently confirmed that out-of-work misconduct that has had a proven adverse effect on the workplace can constitute reasonable grounds for dismissal under the Small Business Fair Dismissal Code. However, the case also serves as a warning for employers that compliance with the code is more than a ‘tick the box’ exercise and they should be very wary in undertaking any dismissals.
In a recent case, owners of a small hairdressing business sacked an employee because they said there was risk of injury to a customer or employee from the person’s erratic behaviour and drug use. The person had been using drugs for an extended period, and appeared at the business owners’ home one evening claiming he had been poisoned and that his apartment had been set on fire. He was then admitted to hospital and certified unfit for work for several days. Following this, his employment was terminated with immediate effect.
The employee lodged an unfair dismissal claim and the employer was forced into court to defend its actions. After an appeal, the courts found the termination was in line with the fair dismissal code. The relevant paragraph of the code allows immediate dismissal for serious misconduct, including theft, fraud, violence and serious breaches of occupational health and safety procedures.
The court emphasised that, generally, employers do not have the right to control or regulate an employee’s out-of-hours conduct. However, where such conduct has a significant and adverse effect on the workplace, the consequences become of legitimate concern to the employer, as in this case, and the court accepted the immediate dismissal on reasonable grounds.
Contact us at [email protected]al.com.au if you have any dismissal concerns that you would like to discuss.