An employer who terminates an employee based on out-of-hours conduct needs to establish a sufficient nexus between that conduct and the workplace
A recent decision of the Full Bench of the NSW Industrial Relations Commission upheld the finding that a correctional officer had been unfairly dismissed after having been terminated following a third conviction for domestic violence.
In Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling  NSWIRComm 118, the Full Bench upheld the first instance decision which found that the employer had not established a sufficient nexus between the conduct and the workplace, and that the termination was disproportionate under the circumstances.
The dismissal for domestic violence
Michael Silling was employed by Department of Corrective Services, as it then was, in 1996 and held the position of Senior Correctional Officer at the Goulburn Correctional Centre at the time of his dismissal in 2011.
In 1998, Silling was charged with common assault following a domestic dispute with his wife. He pleaded guilty and was released subject to conditions which included attending counselling.
Following the conviction, Corrective Services NSW issued Silling a warning which stated, amongst other things:
"I expect all officers, whether on duty or not, to act lawfully at all time... behaviour off duty will be of concern to the Department if it is unlawful or if it brings, or has the potential to bring, the Department into disrepute. [The Code of Conduct and Ethics] also states 'Any private activity which may adversely affect your job performance will be regarded as a work-related issue. Such activity could include alcohol abuse, drug use or violent behaviour'...
I have decided to issue you this warning in the expectation that you have learned (sic) from this incident and will not re-offend". [emphasis added]
Some 10 years later, in 2008, Silling assaulted his daughter, who was 24 at the time. He pleaded guilty to the offence at Goulburn Local Court and was placed on a 12 month good behaviour bond (without proceeding to a conviction). The magistrate took into account that immediately following the incident, Silling had reported the matter to the police and admitted his involvement.
Although Silling reported this second incident to Corrective Services, no internal disciplinary action was taken, allegedly due to an "administrative oversight".
In January 2011, Silling again assaulted his wife during an argument. He once again pleaded guilty, and in February 2011 was placed on a nine month good behaviour bond and ordered to undergo anger management counselling and continue to take prescribed medication (which he had recently began taking for anxiety and depression).
Following the third offence, Corrective Services wrote to Silling and notified him that it was considering taking disciplinary action against him in accordance with the Public Sector Employment and Management Act 2002 (NSW).
In June 2011, the Deputy Commissioner dismissed Silling from the public service. In dismissing Silling, the Deputy Commissioner referred to the three incidents outlined above, as well as a 2002 incident by which Silling was investigated for use of force on an inmate, which ultimately concluded that the use of force was justified and no further action be taken.
Silling brought unfair dismissal proceedings before the NSW Industrial Relations Commission.
Decision at first instance
Commissioner Bishop in Silling v Corrective Services NSW  NSWIRComm 1056 found in favour of Silling, ordering that the Senior Correctional Officer be reinstated.
Although the Commissioner observed that Silling's conduct in relation to the three assaults was "reprehensible and abhorrent", she nonetheless noted that the issue for determination was whether, "in all the relevant circumstances it was harsh and/or unjust and/or reasonable for [Corrective Services] to dismiss Mr Silling from his employment as a consequence of those offences".
Commissioner Bishop took into account the uncontested evidence of Silling and his wife in concluding that he was genuinely remorseful for his actions. It was also accepted that Silling and sought appropriate counselling and medical treatment which were having a positive effect.
The Commissioner also referred to Silling's unblemished 15 year employment record and a number of testimonials from his senior supervisors. The Commissioner noted that the Corrective Services' reliance on the 2002 use of force incident in considering whether to impose disciplinary action was incorrect as Silling had never been counselled in relation to that incident (contrary to what was stated in the termination letter).
Ultimately, Commissioner Bishop found that there was no evidence as to how Silling's work-related performance was, or had been, affected by the convictions. Further, there was no evidence that the convictions have affected, or will affect, the integrity or reputation of the Corrective Service. Instead, the Commissioner found that mere assertions and assumptions had been made by the Corrective Service to the effect that the convictions relating to assaults in a domestic violence context were relevant because Silling's duties involved enforcing the law against persons with criminal convictions.
The Commissioner considered authorities on the necessity of establishing a link between off-duty conduct and employment. She referred in particular to Vice-President Ross's exposition of the principles in Rose v Telstra Corporation Limited  AIRC 1592. In that decision, Ross VP formulated a summary of principles that may be applied when considering whether "out of hours" conduct may justify a dismissal from employment:
- the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
- the conduct damages the employer's interests; or
- the conduct is incompatible with the employee's duty as an employee.
Ross VP added that "in essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee."
Applying this test, Commissioner Bishop found that Silling's acts of domestic violent, "reprehensible as they may be", did not indicate that he repudiated or rejected his contract of employment.
Commissioner Bishop found that Silling was unfairly dismissed as his dismissal was harsh, unjust and unreasonable. The Commissioner set out the following factors which she considered important in reaching that conclusion:
- Silling had a 15 year unblemished work history;
- in relation to each incident, he self-reported to the police and fully co-operated, including pleading guilty to the charges laid;
- he also self-reported the incidents to his managers at the Goulburn Correctional Centre;
- the convictions received were all at the lower end of the scale available to the Local Court;
- although he was given a warning letter in 1998, there is no evidence to suggest that the conviction adversely affected his work performance;
- no evidence was advanced as to the reasons why dismissal was the appropriate penalty given the range of alternative penalties available under the Public Sector Employment and Management Act 2002;
- he was genuinely remorseful for his actions and had taken remedial action; and
- his chances of securing comparable alternative employment within the region were remote.
Corrective Services sought leave to appeal Commissioner Bishop's decision.
Decision on appeal
On appeal, Corrective Services essentially relied on three grounds:
- misapplication of the law and principles on the connection between out-of-hours conduct and employment;
- erroneous aggregation or conflation of tripartite test of "harsh, unreasonable or unjust"; and
- error in consideration of whether the dismissal was harsh.
The Full Bench of the NSW Industrial Relations Commission upheld the decision at first instance and found that reinstatement was appropriate under the circumstances.
Justice Backman noted that while there are circumstances in which the out-of-hours conduct of public officers may warrant, or justify, the officer's dismissal, each application must be decided by reference to the particular facts and circumstances of that application.
Justice Backman (with whom Justice Haylen and Commissioner Stanton agreed) found that Commissioner Bishop did not err in her approach, which was consistent with the principles formulated in Rose v Telstra Corporation Limited.
Further, the Full Bench noted that it has long been recognised that each limb of the tripartite test of "harsh, unreasonable or unjust" may involve overlapping considerations, and therefore, the decision-maker's failure to analyse each limb of the tripartite test separately does not, of itself, constituted an appealable error. Justice Backman found no error in Commissioner Bishop's approach.
Justice Haylen added that:
"The termination of Mr Silling's employment appears to have been ill-considered and somewhat of an over-reaction. The view seems to have been taken that Mr Silling had, in effect, three criminal convictions, when two of the matters were in fact dealt with by way of a bond without proceeding to conviction. The appellant was unable to convincingly establish why the same out-of-hours conduct dealt with so leniently by the Local Court would warrant the harshest industrial penalty, namely, the loss of employment. The disproportionate nature of this penalty was palpable."
The Full Bench decision reaffirms that an employer who terminates an employee based on out-of-hours conduct needs to establish a sufficient nexus between that conduct and the workplace.
The decision reiterates the summary of principles from Rose v Telstra Corporation Limited which may be applied when considering whether out-of-hours conduct justifies a dismissal from employment.
In order for employers to avoid or successfully defend an unfair dismissal claim, they should ensure that the dismissal is properly justified, the reasons for dismissal well documented, and that other alternative penalties have been considered.
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