Union Delegates fighting behaviour outside work hours didn’t justify termination

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Union Delegates fighting behaviour outside work hours didn’t justify termination

The Fair Work Commission has quashed the termination of a union delegate involved in a physical altercation with another delegate and ordered reinstatement. The decision was primarily due to Deputy President Boyce accepting the employee’s arguments that the conduct was not sufficiently connected to work, as it occurred after hours and whilst both delegates were attending an interstate union sub-committee meeting.

The case involved a Truck Driver employed by Toll Transport Pty Ltd (Toll), one of Australia’s largest logistics companies. He had been employed for almost eight years with an unblemished discipline record. Critical to the case’s circumstances was that he was also an elected Toll delegate of the Transport Workers’ Union of Australia (New South Wales Branch) (TWU) based in Sydney.

In May 2019, he attended a Toll TWU sub-committee meeting in Melbourne on paid delegates’ leave as provided in Toll’s enterprise agreement. Toll had organised and paid for his flights to and from Sydney and provided meals and accommodation. After the day’s session, the employee had free time as the union had not organised any after-hours functions.

Well after the meeting finished, around 11 pm on 30 May 2019, the police attended the employee’s hotel after reports of a physical altercation involving the employee and another delegate. No charges or complaints were made by either party, and there is no indication the police are pursuing the matter. The employee acknowledged the incident but claimed he was acting in self-defence.

Both employees were stood down, and following an internal investigation, both were summarily dismissed in August 2019.

At the hearing, the employee claimed that the dismissal was unfair as the incident occurred out of hours and that he was merely defending himself from his co-worker’s aggressive actions. While Deputy President Boyce agreed with the latter claim, the case was primarily determined on whether the incident was sufficiently connected to the employee’s work, and thus, could form a reasonable case to justify termination.

Deputy President Boyce largely relied on the principles espoused by Vice President Ross in Rose vs Telstra Corporation that the circumstances for which ‘out of hours’ conduct can lead to a valid reason for termination are limited to the following objective assessments:

·        that the conduct is likely to cause serious damage to the relationship between the employee and employer,

·        may damage the employer’s interests,

·        may be incompatible with the employee’s duties, or

·        be of such gravity or importance to indicate a rejection or repudiation of the employment contract by the employee.

He noted that the delegates were on leave and away from the Toll workplace. They were attending meetings organised by the TWU, not their employer, and importantly, they were attending the meetings as TWU delegates rather than Toll employees. Deputy President noted the distinction by stating, “While it is trite that a TWU delegate is also an employee of Toll, the fact that a TWU delegate wears two hats at the same time does not mean that they must always wear those hats together”. He further commented that if an alternate argument was accepted that the delegates were actually considered at work while on Delegate’s Leave, this could only be relevant to behaviour that occurred during the actual meetings and not extended into intervals of ‘free’ or ‘personal’ time.

In determining the dismissals to be unfair, he also rejected Toll’s submissions that reinstatement was impractical, noting that the employee had been a loyal employee, was prepared to relinquish his delegate’s role, and was highly unlikely to ever engage in conduct for which he was terminated.

Toll Transport Pty Ltd [2020] FWC 5819 (6 November 2020)

Telstra Corporation Limited (U20564 of 1998)

For queries about misconduct, investigations or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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