News.com.au quoted McDonald Murholme’s Senior Associate Andrew Jewell on the probability of dismissal after a New Zealand couple were caught having sex in full view of smartphones. Unless it was a case of breaching company policy, it is difficult to label the conduct as misconduct. See below the article published on news.com.au for further details:
Would you get sacked for an office sex romp?
By now, you would’ve heard about that unlucky/scoundrel couple in New Zealand caught in a sex romp in full view of pubgoers (and their smartphones) across the road.
Turns out, the ‘gentleman’ involved is married with kids. The ‘lady’? Well, she’s only recently broken off an engagement.
Over the past couple of days, there have been raucous debates in offices and over dinner tables over whether the dirty-deed-doers deserve any sympathy — after all, no one expects to become a viral sensation, even if you didn’t have the presence of mind to pull the blinds down.
Now, another question has emerged: Why hasn’t the pair gotten the sack?
Their employer, Christchurch insurance firm Marsh, has said while it’s disappointed in the couple, they will not be shown the door (at least not immediately). An internal investigation is reported to be underway.
But can you actually get fired for having sex in the office? There’s a definite ‘ick’ factor and, depending on how adventurous you are, OH&S considerations.
While many people would without hesitation answer ‘of course you’d get the sack’, the reality is… it’s a little more complicated.
Sharna Schreier-Joffe, executive counsel and senior team leader at Harmers Workplace Lawyers, said whether someone would get fired over such an incident depended on the circumstances, including what kind of policies a company had in place.
“It’s a serious matter and the disciplinary action would depend on the circumstances. It’s certainly not appropriate workplace behaviour.”
Ms Schreier-Joffe said senior and longstanding staff were more likely to get fired if they were caught copulating in the office.
“If it’s junior employees and they were doing it in the relative privacy of an office in the middle of the night, then termination is looking less likely as the outcome.”
McDonald Murholme senior associate Andrew Jewell said someone sacked for office hanky panky might have grounds to challenge their termination under the Fair Work Act if the deed wasn’t related to their actual work.
“The first consideration is whether conduct outside the workplace can be relevant for employment dismissal, which is a well-established principle from Rose v Telstra, and more recently in cases involving social media,” he said.
The case Mr Jewell is referring to is an unfair dismissal case involving two Telstra employees who engaged in a fight while away on a work trip. The court ruled that because the incident happened in a hotel room, wasn’t during office hours and the pair weren’t wearing uniforms at the time, the dismissal wasn’t justified.
Mr Jewell added: “While the conduct outside of working hours is relevant, it must still be misconduct justifying dismissal. There is no sexual harassment, as there are clearly two willing participants and no unwelcome sexual conduct, so unless the company had a policy which covered such situations and had been breached, it will be difficult to label the conduct as misconduct.
“Therefore, the couple would likely be protected by unfair dismissal laws in Australia and would have grounds to challenge any dismissal under the Fair Work Act.”
So there you have it. If you find yourself in a, um, compromising position and faced your marching orders, you might have grounds to challenge the action.
But if you were caught with your pants down — literally — with the office rumour mill what it is, it might be better to start dusting off that resume.
A Fair Work Ombudsman spokesperson said: “An employee can be lawfully dismissed without notice for serious misconduct, which is defined in the Fair Work Regulations 2009 as: a wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment, or conduct that causes serious and imminent risk to the health or safety of a person; or the reputation, viability or profitability of the employer’s business.”
However, the spokesperson said that if an employee felt their dismissal was unjustified, it can by challenged through the Fair Work Commission, a separate agency to the Fair Work Ombudsman.
Reference: news.com.au, ‘Would you get sacked for an office sex romp?, 6th February 2015