Out of Hours Conduct leads to Dismissal

Employees should be aware that where out-of-work misconduct has an adverse effect on the workplace, it can constitute reasonable grounds for dismissal under the Small Business Fair Dismissal Code.

Employers need to realize that compliance with the code is more than a ‘tick the box’ exercise. They should have discussions with the employee, paying attention to their explanations and views.

In a recent case, owners of a small hairdressing business sacked an employee because they said there was risk or injury to a customer of employee from the person’s erratic behavior and drug use. The person had been using drugs for an extended period, and appeared at the 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.

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 emphasized 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.

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