Managing the behaviour and performance of staff while at work is a demanding but well-understood requirement, however, the question is often asked…what can and should the business do about misconduct that occurs outside of work? This weeks HR Highlight will look at this question and the impact of an illustrative case on how businesses should be addressing misconduct that occurs outside of work.
Misconduct Review
Misconduct is a broad term that encompasses a variety of behaviours that the business has established are unacceptable for a staff member to exhibit. The list of what is and is not misconduct will vary from business to business, as will the stated responses to staff misconduct. In some businesses misconduct will include brand-specific actions such as bringing competitors products to site, wearing a particular competitors colours, having a mobile phone in the cabin of a motor vehicle etc. These specifics are in addition to the more general list of misconduct behaviours such as theft, bullying, harassment, discrimination, victimisation, circumventing or ignoring safety controls, putting staff and customers at risk, disclosing confidential information and bringing the business into disrepute.
Managing misconduct that occurs in the workplace typically involves discussing the breach with the employee, seeking their comments on the specifics of the breach and then moving to training, performance management, termination or referral to the police, depending on the specifics. This is a well-understood process for addressing misconduct at work.
What becomes challenging is when the misconduct occurs outside of work. Many businesses are unsure about where their responsibility and reach end, and what steps they need to take to manage misconduct when it occurs outside of work.
Case Review
The courts have again clarified the businesses options and responsibilities in this area.
In this case, a staff member sends pornographic materials to a series of work colleagues. The business responded by launching an investigation, and ultimately dismissed the employee for misconduct. The employee lodged an unfair dismissal claim, outlining that the messages were sent outside of work hours, to ‘friends’.
The courts found that while the conduct did happen outside of work hours, the ‘friends’ were work colleagues and as such the behaviour and relationship had a basis in the workplace, so the business was right to respond and manage the behaviour within the context of the businesses workplace behaviour expectations. As such the dismissal was ruled fair.
Similar examples have been seen with termination for; inappropriate conduct at a non work sanctioned after party, out of work road conduct for professional drivers.
Lessons
While it is clear from these cases that the business has the right and opportunity to manage behaviours that amount to misconduct that occur outside of the workplace, there are areas that should be considered prior to taking action, and there is the flip side that in addition to the right to act, the business also has the responsibility to act on some out of work misconduct.
Where the misconduct threatens the safety of other staff, such as bullying, harassment, discrimination and victimisation, the business has the right AND the responsibility to respond. The requirement to provide for the safe working environment for staff does not end at the businesses doors. The actions of one staff member to another outside of the workplace can have a devastating effect on the victim in the workplace, and any such issues must be addressed within that context.
When misconduct is found to be occurring outside of the workplace, the business should review the impact on the business and the staff at work before responding to ensure that the response is appropriate and not an overreach. While some of the behaviours of staff outside of work would be considered inappropriate if undertaken inside of the workplace, many of these do not pose a danger to the business or its staff and as such would be outside of the businesses scope to performance manage.
In your business
Businesses are reminded that in all performance management situation it is vital that the businesses expectations be clearly communicated to all staff on commencement and from time to time. Staff should clearly understand what is expected of them, what a breach looks like and what are the likely outcomes of a breach. This is especially true for behaviours that may occur outside of work, as many staff genuinely believe that if it happens offsite then it is outside of the businesses area of concern. Setting clear expectations and then managing to them, is the most efficient way of ensuring compliance.
Here to Help
This article is general in nature and covers things to consider, implement and watch out for in your business. It is provided as general advice and you should seek further advice on your situation. ACAPMA Employment Professionals are available to assist ACAPMA members via employment@acapma.com.au . ACAPMA membership is affordable at only $860inc GST per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Visit: https://acapma.com.au/membership/ to learn more or to apply for ACAPMA membership.
Elisha Radwanowski BCom(HRM&IR)
Executive Manager for Employment and Compliance
ACAPMA
