The Fair Work Commission (FWC) has found that an employee was not unfairly dismissed for groping a hotel worker whilst staying at a hotel paid for by his employer.
The employee was staying at a hotel as part of a training course that he was required to attend in the course of his employment. The employer regularly used the hotel to accommodate its employees as a part of its ‘work swing’ arrangements. Whilst having drinks with some colleagues at the hotel bar, the employee allegedly groped the bum of a hotel worker.
The employer conducted an investigation into the incident and, after determining that the allegation was substantiated, dismissed the employee.
Subsequently, the employee made an unfair dismissal claim on the basis that he denied groping the hotel worker and that, because the victim of his groping was a hotel worker, rather than a fellow employee, it was unlikely to cause serious damage to his employer.
Decision of the Fair Work Commission
The FWC flatly rejected the employee’s claim and said that the employer had good grounds to dismiss him.
The FWC not only found that the employee had groped the hotel worker, but that the conduct was likely to cause serious damage to his employer.
Commission Cloghan remarked that the employee was only at the hotel’s bar because of his employment and that his conduct was likely to cause serious damage because of the employer’s regular relations with the hotel.
Commissioner Cloghan went on to say that, whilst the employee was not at his normal work location, he was still required to behave in a way which was consistent with the conditions of his employment.
Lessons for employers
This decision confirms that employers can take disciplinary action against an employee for the employee’s conduct away from his or her normal work location and/or conduct out of hours where the conduct is detrimental to the employer.
Employers should ensure that they implement or otherwise refresh policies dealing with appropriate workplace behaviour and social media to ensure that employees are made aware that disciplinary action can be taken against them for their conduct away from their normal work location or out of hours.