Off-duty Grope Costs Job

Applicant v Employer [2015] FWC 506 (16 February 2015)

When an employee made a clumsy, groping pass at a bar attendant working in the hotel at which he was staying, little did he realise the long term consequences for his job. In a case demonstrating that behaviour in one’s own time is not immune from an employer’s sanction, the employee has had his unfair dismissal claim rejected by the Fair Work Commission.

The employee was staying in employer-provided hotel accommodation. One evening, the employee groped a hotel staff member who understandably reacted badly and complained. The employer sacked the employee, based primarily on the grounds of bringing the employer into disrepute.

The employee argued that even if he did do what he was accused of (which he denied despite strong evidence to the contrary), it was not “at work” so it was none of his employer’s business. Therefore to sack him was unfair and he should be reinstated. He argued the complainant was not a fellow employee but an employee of the hotel, so there was no direct relationship and therefore no likelihood of his employer’s interests being harmed.

But the FWC was unmoved. It said that the hotel and the employer had a relationship that was fundamental to the performance of the business – the employees had to be accommodated there as part of their travel arrangements to and from work. It was important to the employer’s interests that the employee conduct himself properly in the hotel as he would be instantly identified with the company employing him.

On top of that, the FWC made the valid point that the hotel worker was entitled to go about her job without being groped by patrons, regardless of who they worked for. And further, this employee had already upset the hotel in a previous incident involving damage to his hotel room. The hotel told his employer that the hotel did not want him back there and this had a direct impact on the employer for obvious reasons.

The Commissioner was scathing in his description of the employee’s behaviour and showed no inclination to find any mitigating factors that might have been to the employee’s favour. On the contrary, the Decision is riddled with damaging comments and derisory remarks concerning the employee’s defence.

This case provides support for employers who are concerned about off-duty behaviour which has the capacity to bring their company into disrepute. It means FWC, provided the employer acts fairly and consistently, will support them when they seek to protect their reputations from bad behaviour outside of work which can reflect on the business.