In the 20 years that I have practiced, there has been consistent case law precluding disciplinary action against a worker for out-of-work-behaviour. But now the world has changed. The recent case of Kolodjashnij v Boags cements the change in limited circumstances.
The facts in Boags are simple. Boags had a policy about responsible alcohol use. The policy was tied to the brand – Boags wanted its workers to be exemplars of consuming alcohol responsibly. Boags did not want any conduct that would illicit a public perception of Boags being connected with and for condoning excessive drinking. The policy and the training of the workers around the policy made it clear that any bad behaviour surrounding drinking, either in or out of work, would lead to disciplinary consequences.
Mr. Kolodjashnij was charged with driving (outside work hours) with a blood alcohol level of 0.158. He advised his supervisor upon his return to work, was stood down and subsequently summarily dismissed. Boags considered his personal circumstances and work history. Boags formed a view that a summary dismissal was warranted, given the seriousness of the breach of the policy by Mr. Kolodjashnij, after weighing up all the matters.
Mr.Kolodjashnij made an application to Fair Work Australia (FWA).
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Commissioner Deegan found the dismissal was based on valid reasons and that the decision-making was not harsh, unjust or unreasonable. The Full Bench of FWA agreed. The Full Bench decision provided guidance to employers of when they can regulate out-of-work behaviour and what is required:
1. The employer must have policies that are values/product based and purport to extend beyond work hours. The policies must expressly state the effect of the policy.
2. The reason for the extension of the policy must be relevant to the business, for example:
- Responsible drinking – brewery.
- Responsible use of money – bank.
- Responsible alcohol use, behaviour, communication – organisations that support children and adults at risk of drugs, alcohol and violence.
3. All workers must be trained in the policy and be aware of the consequences of breaching the policy.
4. In reviewing the unacceptable behaviour the employer must act proportionally (crime fits the punishment), with procedural fairness, and after weighing the workers work history and personal circumstances.
The Global Financial Crisis, increased brand competitiveness and recognition, and increased public exposure of the worker’s misconduct linked to employment has changed the public, FWA and employers’ perception of out-of-hours misconduct.
It is likely the limitations of the Boag’s case will diminish (ie. link behaviour to product) over time. Instead, the duty of workers to act in good faith and in the best interests of the employer will broaden the reach of policies and disciplinary action to protect employers.
Andrew Douglas is the Managing Director of Douglas LPT, an integrated legal, HR, recruiting and training business. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He is the principal of the legal division of Douglas LPT and appears in courts, tribunals and Commissions throughout Australia.