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17 July 2012 7:18am

 A senior corrections officer who was dismissed following his third domestic violence conviction has been reinstated, after a tribunal found an insufficient connection between his out-of-hours conduct and his job.

The case is a useful reminder of factors to consider when disciplining employees for conduct that occurs outside of work hours, say the Lander & Rogers workplace relations and safety team in a recent Bulletin.

The worker in question was a senior corrections officer at Goulburn Correctional Centre.

After his third conviction for domestic violence, his employer – Corrective Services NSW – terminated his employment.

The worker sought reinstatement.

According to the Bulletin, the employer based its decision on two grounds:

    1. that the worker’s history of criminal offences was fundamentally incompatible with the role of a corrections officer, whose role involved upholding the law, and with public service employment generally; and

  1. that as a result of his criminal history, Corrective Services had lost trust and confidence in him.

In the NSW Industrial Relations Commission, Commissioner Elizabeth Bishop ordered Corrective Services to reinstate the worker and pay back his lost wages.

“Central to the Commission’s reasoning was the fact that Corrective Services had failed to show a sufficient connection between [the worker’s] convictions and his employment, or that his convictions would have an adverse impact on the integrity or reputation of Corrective Services,” the Bulletin says.

The worker acknowledged that his convictions had the effect of tarnishing his employer’s reputation and integrity, but Commissioner Bishop held that this acknowledgement was only his opinion, and wasn’t determinative.

Landers partner Neil Napper says third-party evidence of reputation damage was lacking.

“Media comment or feedback from third parties, whether they’re suppliers or customers or clients of the organisation would be typical examples [an employer could rely on].”

The problem is that seeking out such evidence – if it isn’t forthcoming – involves publicising the situation, which would be like “cutting your own throat”, he says.

The Bulletin also notes that the Commissioner rejected the employer’s assertion that it had lost trust and confidence in the worker.

“No reasons were given for the [employer’s] assertion, nor was it supported by evidence,” the Bulletin says.

In fact, the Commissioner drew attention to the worker’s “totally unblemished work history”, his dedication, and the commendations he had received during 15 years of service.

“This case demonstrates that the mere fact that an employee has engaged in reprehensible, and even criminal, conduct does not automatically give an employer the right to take disciplinary action,” the Bulletin says.

“A sufficient connection with the employee’s employment is required.”

Avoid surprises

Napper says that the appropriate response to out-of-hours misconduct comes back to the employer’s policies and procedures.

“For example, is there a disciplinary policy that deals with these sort of infractions? What does it say? What sort of powers does it give or purport to give to the employer short of dismissal? Could there be a demotion? Could there be some sort of final warning? What does the policy provide for? Has that been communicated to staff? Are they aware of it?

“This all goes to the notion of fairness,” Napper says.

“If and when the employer wants to take action, will they be seen as acting in a fair and reasonable way?”

These days, any disciplinary action can be the source of counter action by employees or their unions, Napper warns.

“In order to make sure you get it right as an employer, you really need to make sure that any step you take doesn’t come as a surprise to the individual.

“The general test is if it’s going to be a surprise then you’ve probably got it wrong,” he says.

Drawing on other key cases, the Landers team offers three tips for employers regarding out-of-hours conduct:

    1. Ensure that clear policies are in place concerning the conduct of staff while they are in uniform or travelling for a work-related purpose. The importance of the policies should be clearly impressed on employees, and the consequences for breaching a policy should also be made clear.

    1. When contemplating disciplinary action against an employee for their out-of-hours conduct,
      consider whether it occurred while they were in receipt of any allowance or other benefit. That won’t necessarily be a determinative factor in establishing the fairness of subsequent action, but it could be relevant.
  1. Before taking disciplinary action for an employee’s out-of-hours conduct, consider whether the conduct could reasonably be expected to damage the company’s reputation, or otherwise expose it to liability.

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