A recent decision of the NSW Industrial Relations Commission has provided additional guidance to employers on the approach to be taken when dealing with misconduct matters occurring out of the workplace, and outside normal work hours. In this case, a correctional officer convicted of assaulting a fellow colleague at the races in an incident involving his wife had his employment terminated. An application for reinstatement was dismissed by the Commission on the grounds his out of hours conduct was inconsistent with the values of his employer.
Mr Kenneth McFarlane was employed by Corrective Services NSW as a First Class Correctional Officer. On 6 August 2015, while off duty, Mr McFarlane was at the races with work colleagues and their partners when an incident arose resulting in him assaulting his colleague, Mr Patrick McKay. Mr McFarlane, who was affected by alcohol at the time, struck Mr McKay on the back of the head causing him to fall to the ground where a further five or six punches were delivered to his face.
In October 2016, the District Court affirmed a finding of guilt and the applicant was ordered to enter into a good behaviour bond for 12 months.
His employer initially sought the applicant’s resignation, considering ongoing employment was untenable given the applicant’s conduct was both contrary to the law and their Guide to Conduct and Ethics 2010. The respondent also contended that it had lost trust and confidence in the applicant.
However the applicant refused to resign and as a result, the Applicant was subsequently dismissed.
It is noted that prior to the assault, Mr McFarlane’s work history was unblemished.
The respondent pressed that the Government Sector Employment Act 2013 relevantly provides that government sector employees must comply with the Act’s core values of integrity, trust and accountability, and deems an employee commits misconduct when they are convicted for an offence punishable by imprisonment for life or for 12 months or more. Corrective Services also outlined the importance of staff working to and maintaining its Statement of Purpose and Values as set out in the Guide to Conduct and Ethics.
The applicant urged the Commission to give consideration to mitigating factors including his length of service, the financial impact of dismissal and his unblemished service record together with the following matters that he considered Corrective Services failed to properly consider:
His 55 years of age and expected difficulty in finding a replacement position;
His loss of around $25,000 in allowances and overtime;
The poor financial position of applicant and his wife; and
His subsequent diagnosis of Post-Traumatic Stress Disorder.
Commissioner Stanton considered the harshness of the termination against the mitigating factors and concluded the seriousness of the applicant’s conduct against the applicable regulatory context outweighed these, and on this basis dismissed the application before him.
Tips for employers
Employers should be aware that the Commission made extensive reference to the Guide to Conduct and Ethics issued by NSW Corrective Services, which extended to coverage of out of hours conduct. Many employers in the public and private sectors are developing and implementing similar guidelines to ensure out of hours conduct which has the potential of impacting on the workplace is able to be covered from a conduct and discipline point of view.
McFarlane v Corrective Services NSW  NSWIRComm 1073
Aimee Saaib is the Practice Manager of O'Connell Workplace Relations and has considerable experience in conducting impartial, third-party investigations with clients in the public sector, local government and private sector.