Is ‘out of hours’ conduct really enough to dismiss an employee?
A customer service attendant employed by Sydney Trains since 2000, travelled on an NSW TrainLink service between Albury and Sydney on 10 August 2019. Although receiving other train fares on the vacation free of charge, the worker paid the fare to Sydney in full.
After purchasing alcohol from the train buffet counter, the worker allegedly acted disrespectfully to three NSW Trains employees. The details of the worker’s behaviour were not disclosed in legal documents.
An investigation into the worker’s behaviour was commissioned by the Workplace Conduct and Investigations Unit of NSW Trains, which found that the worker had breached the Transport Code of Conduct and the Transport Prevention and Management of Bullying and Harassment Policy and Passes Booklet.
In a meeting on 26 November 2019, the worker was thereby dismissed from Sydney Trains.
The worker sought a review of the decision by the Transport for NSW Disciplinary Panel, who affirmed the dismissal. However, the FWC found that given Sydney Trains and NSW Trains are separate entities, the worker was not a colleague of NSW Trains employees.
Having paid the travel fare in full, the worker was not considered an ambassador for Sydney Trains at the time of the incident. Furthermore, given the worker was not performing employee duties, the Commission found no reputational damage to be caused. With this, the Commission was not satisfied that the worker’s behaviour constituted a valid reason for dismissal.
Sydney Trains rebutted by referring to the worker’s behaviour during the dismissal meeting as ‘aggressive and inappropriate’. However, given the poor timing of the meeting and lack of notice provided to the worker, this allegation was also dismissed by the Commission.
Ultimately, the Commission was satisfied that the worker was denied procedural fairness and the dismissal was harsh, unjust and unreasonable. The worker’s reinstatement with lost wages and superannuation adjustments was found to be an appropriate remedy.
Key Takeaways for HR:
- This incident calls into question the line between code of conduct and out of hours conduct for employees
- In some cases, out of hours conduct is not sufficient to dismiss an employee
- Employees of similar entities are not necessarily considered colleagues, and thus code of conduct rules may not apply
- Procedural fairness must always be followed when dismissing an employee
