The General Position
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 [2012] 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.
The Decision
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.
The Lesson
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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