A contentious issue in employment law is an employee’s conduct outside of work hours and whether this affects their job. Nowadays, with the rise of telecommunications and the internet, it is unsurprising that the line between work and private life can be blurred. COVID-19 has generated even more concerns about employees working remotely which may confuse both employers and employees about conduct occurring outside of the workplace and outside of usual working hours. Many people believe that their behaviour outside of work is irrelevant to their job. Unfortunately, this is not always the case, as seen in the case below:
Recent case overview: Cuculoski v Australian Transit Group T/A Buswest  FWC 3361
Mr Cuculoski was a bus driver who was employed by Buswest. Buswest was engaged in a contract with the Crown Casino in Perth to operate shuttle buses for casino patrons. Cuculoski was found to have borrowed $90 from a regular bus passenger. Both the driver and passenger knew each other to be a regular driver/passenger at the Crown Casino. The passenger lodged a complaint with the casino in February 2020 after Cuculoski failed to repay the money back.
The casino advised Buswest that they found this behaviour unacceptable as it affected the casino’s reputation. Cuculoski was given a warning about his behaviour in his first meeting, however, he became aggressive and walked out of the meeting. He also attempted to discuss the issue with employees from the casino, where he was unsuccessful. The casino contacted Buswest about the incident, in which Buswest responded by apologising for their employee’s behaviour. Another meeting occurred between Buswest’s CEO and Cuculoski, where Cuculoski was terminated due to serious misconduct.
Cuculoski lodged an unfair dismissal application with the Fair Work Commission (FWC).
The employee’s case:
Cuculoski argued that the conduct which led to his dismissal occurred outside of working hours. Instead of borrowing the money whilst he was driving the bus, he claimed that the money was borrowed when he was off duty and at the casino as a patron himself. He also claimed that he attempted to repay the money back to the passenger as soon as he could, however he was not able to locate the passenger in the casino and was absent from work for a few days after he borrowed money. Cuculoski also claimed he was off duty when he approached Crown Casino employees about his misconduct. He also claimed that he was told in his first meeting to resolve the issue with Crown Casino, a fact which was not accepted by the FWC.
The FWC upheld the employee’s dismissal, stating that Mr Cuculoski’s act of borrowing money from a person he knew to be a regular passenger on his bus, whilst at the Crown Casino, and then failing to repay the money, was a valid reason for dismissal.
The FWC noted that the Cuculoski’s conduct on the premises of his employer’s client significantly damaged his employer’s interests, which was the business relationship between Buswest and Crown Casino.
Lodging an unfair dismissal claim in Australia
Before lodging an application:
Before lodging an unfair dismissal application, an applicant must ensure they are covered under Australia’s national workplace relations system, which covers a majority of workplaces in Australia.
An applicant also must meet a minimum employment period of at least 6 months before applying for an unfair dismissal claim. However, an applicant who was employed in a small business needs to satisfy a minimum employment period of 12 months.
It is important to note that strict time limits apply for unfair dismissal applications. An application should be lodged with the FWC within 21 days after the dismissal takes effect.
After an application is made to the Fair Work Commission, the matter is listed for conciliation. Both the employer and employee will need to attend conciliation and attempt to resolve the issue. However, if the matter is not resolved at conciliation, the matter can be forwarded to arbitration or a jurisdictional hearing before a Member of the FWC. If the matter goes forward to a hearing, an applicant will need to prove unfair dismissal using their own evidence they have gathered.
Proving unfair dismissal:
Unfair dismissal occurs when an employee is dismissed in a harsh, unjust or unreasonable manner. The Fair Work Act 2009 provides the definition of unfair dismissal under s 385, where an applicant will need to prove to the FWC that their dismissal was:
- Harsh, unjust or unreasonable
- Inconsistent with the Small Business Fair Dismissal Code (in the case of employees of a small business)
- Not a case of genuine redundancy
If you are looking for advice on your employment rights or if you are looking to review your employment contracts, call one of our experienced lawyers now on (02) 9920 1787 to find out how we can assist you. Pannu Lawyers are highly experienced in drafting & reviewing employment contracts as well as resolving civil disputes between employees and employers. Our team regularly appear at the Fair Work Commission in matters of unfair dismissal, general protection claims and other cause of actions arising out of Fair Work Act.
The above information is intended as general information and is not intended to be relied on as legal advice.