It is well-recognised that an employee is entitled to a private
life and that their conduct outside work is only relevant to the
employment relationship if it can be said to have breached an
express or implied term of their employment contract. There has to
be some relevant connection between the behaviour and possible
damage to the employer or its reputation. Accordingly, an employer
does not ordinarily have an unfettered right to sit in judgement
over its employees on their behaviour outside work.
The Facts in Toll
Diehm v Toll Transport Pty Ltd T/A Toll Customised Solutions
 FWA 8818 involved an employer who suspected a female
employee of wrongfully claiming sickness absence. As she was
claiming sick pay for that day (allegedly due to a work-related
injury for which she had an open workers' compensation claim),
the employer seemed justified in reviewing her behaviour during her
absence from work.
Toll (not its workers' compensation insurer) therefore
decided to put Diehm under surveillance, during which she was seen
briefly attending a supermarket during what would ordinarily have
been work hours. After her scheduled work hours, she was seen
driving to her sister's house.
When she returned to work, she was asked by Toll what she had
done on her day off. She claimed only to have visited her sister
during the afternoon, insisting so at a further meeting. Toll then
revealed that surveillance had shown her shopping that day, a fact
which she claimed she had "honestly forgotten" about.
Nevertheless, Toll summarily dismissed her on the grounds of
serious misconduct, stating that she had deliberately misled them,
which amounted to dishonesty and in turn caused a complete
breakdown of their relationship.
Diehm brought a successful claim for unfair dismissal on the
basis that Toll's actions were harsh, unjust or unreasonable.
At the hearing, Toll referred to earlier incidents involving Diehm,
stating that they had also relied upon them in forming the view
that the employment relationship was damaged beyond repair. The
tribunal held that she had not been given the opportunity to
challenge the allegations, that they had not been brought to her
attention and that a decision about guilt had not been reached by
Toll on each of those matters in any event. In terms of her
"misleading statement", it was held that Diehm had
genuinely forgotten that she had been shopping and that there had
been no intent to deceive.
It is clear from this case that better evidence of dishonesty
would be needed before deciding to dismiss. Employers should
therefore be aware that activities undertaken during sickness
absence that are arguably not inconsistent with the stated sickness
condition cannot be taken without more as evidence of deceit.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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