In the latest instalment of "professional sports stars behaving badly", a video has surfaced of ex-GWS Giants and Sydney Swans player Shane Mumford snorting a line of powder. The incident allegedly occurred in 2015 when Mumford was still a player for the Giants, the club at which he currently works as an assistant coach. The timing is not great for Mumford who had been considering coming out of retirement to play for the Giants next season. There are also potential employment law ramifications as although the conduct occurred outside of the workplace, in certain circumstances employers may have a right to discipline employees, including termination, for their out of hours conduct.
It has consistently been held by the Courts that an employer may terminate the employment of an employee because of their out-of-hours conduct provided that there is a relevant connection between the conduct and the employment relationship. The following matters will be considered when determining if there is a relevant connection:
- Whether the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employee and employer;
- Whether the conduct damages the employer's interests; or
- Whether the conduct is incompatible with the employee's duty as an employee.
In Mumford's case, the strongest argument that there is a relevant connection between the conduct and the employment relationship is that the likely drug use in the video is conduct that damages both the reputation and financial interests of the Giants as the employer. Anything that reflects poorly on an individual, generally also reflects poorly on their employer (rightly or wrongly) especially when the employer is well known to the general public. Also working against Mumford is that the more senior an employee involved, or the higher their own public profile, more often than not, the more closely scrutinised their out of hours behaviour will be.
In addition, sports clubs are increasingly positioning themselves as family friendly and are very wary of the impact that negative press can have on their ability to attract and retain sponsors. Just ask the Canterbury Bulldogs after they lost their major sponsor Jaycar after their Mad Monday celebrations this year. Indeed, the Giants released a statement in which they stated the club "views Shane's actions as completely counter to the club's values." There is potential that Mumford's actions could damage the financial interests of the Giants as his employer.
However, the reality is that it is generally difficult for employers to lawfully dismiss an employee for their out of hours conduct. This is because the employer has very little control over how an employee spends their own time outside of work. One or more of the three factors outlined above must be satisfied, and the conduct must be of such gravity that it amounts to a repudiation of the employment contract by the employee.
In all likelihood, I do not think the Giants will dismiss Mumford as an employee as working in his favour is that the video is over 3 years old. Another reality is that although there may be grounds to terminate, the Giants can simply choose not to do so. Given his value (and potential value as a player next year) to the Giants, I would not be surprised to see "Big Mummy" don the orange and charcoal again next season.
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