Misconduct outside the workplace: dismissal of postman upheld

The claimant commenced employment as a postman in 1999. He sustained a back injury and commenced long-term sick leave in February 2011. While absent on sick leave, the claimant was convicted of an offence under the Misuse of Drugs Acts and given a nine-month’s suspended sentence. An Post became aware of the sentencing through a newspaper report and following a meeting with HR in September 2011, the claimant was suspended with pay.

The matter was referred to An Post’s Employee Relations Executive for further consideration and a meeting was held with the claimant and his trade union representative. During the course of the investigation, it was observed that the claimant was a heroin addict from 2005 to 2010. However he had not notified An Post of this fact nor had he sought assistance from the company’s medical support office (which he had been attending for his back condition). The claimant stated that he had been threatened into minding the drugs, which ultimately led to his conviction. The claimant also provided evidence that he was suffering a number of personal difficulties at that time.

Following a consideration of the matter, the Employee Relations Executive recommended that the claimant should be dismissed on grounds of gross misconduct and a loss of trust and confidence due to his conviction. The claimant appealed this decision internally. The Appeal Officer considered the issues arising, in particular that the claimant had dealings with some intimidating individuals which had led to his conviction and that this posed a continuing risk. The Appeal Officer considered this to be particularly important in circumstances where a postman is in a position of trust and where An Post has a duty of care to its employees and customers, and therefore the claimant’s dismissal was upheld.

This decision is a useful examination of the relevance of misconduct outside the workplace. The Employment Appeals Tribunal (the “EAT”) observed that the basic principle is usually that “an employer’s jurisdiction over misconduct of the employee ends at the company gate”. However, in certain cases disciplinary action may be warranted where there is a “sufficient connection” between the misconduct and the employee’s work. The test according to the EAT is whether “the out of work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer’s business?”. In considering whether there is a genuine connection between the employee’s misconduct and the employment, the EAT commented that the connection must be such that:

1. it leads to a breach of trust, or causes reputational or other damage to the company;
2. the employee’s offence make him/her unsuitable to continue in the job;
3. the employee’s offence causes the employer to genuinely lose trust and confidence in the employee;
4. the employee’s behaviour risks bringing the employer into disrepute; and
5. the dismissal is more likely to be fair if the conviction is reported in the media.

The EAT found that the dismissal was fair and reasonable in all of the circumstances. While the decision is a useful precedent for employers, each case will depend on its own unique facts and an employer should take legal advice before initiating any disciplinary action related to misconduct outside the workplace.

A full copy of the decision can be viewed here. For further information or advice on this matter please contact Lisa McCarthy or Barry Walsh of the Employment Unit.