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Your number's up: out-of-work conduct justified dismissal

FWC rejected the man's argument that his out-of-hours conduct should not affect his employment.
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Your number's up: out-of-work conduct justified dismissal

13 July 2020

By Marise Donnolley

An 'off duty' Crown Casino shuttle driver who borrowed $90 from a patron inside the venue was not unfairly dismissed, the Fair Work Commission has ruled.

It rejected the man's argument that his out-of-hours conduct should not affect his employment.



Facts of the case

The casual bus driver was employed by Australian Transit Group (trading as Buswest) in December 2015.

The company was contracted to operate shuttle services from the Perth CBD to the Crown Casino.

In February this year the casino contacted Buswest about an 'unusual complaint'. A patron had claimed that while boarding the shuttle the driver had asked him to lend him some money.

"Thinking he was doing someone a favour he handed over $90 and was told he would get it back the next day", the email read.

"Unfortunately this has not occurred as yet."

The email noted the patron was an "acquaintance of the driver, as he is a frequent patron of Crown, but not a friend."

A further email stated that Crown viewed the driver's behaviour as unacceptable and that it had reflected badly on the casino.


The dismissal

At a meeting with the driver, Buswest claimed he became aggressive, shouted that he had done nothing wrong and refused to accept a warning letter.

Later that day, Crown notified Buswest that the driver had approached a casino employee saying he'd been told to "sort it out with Crown".  

Four days later, the casino emailed Buswest advising the driver had again visited the casino and attempted to discuss his employment issues.

Buswest met with the driver and, after concluding his behavior amounted to serious misconduct, terminated his employment.


Arguments

The FWC accepted the driver's evidence that he didn't borrow money from the patron while he was working; rather, the exchange happened inside the casino when he was off duty. The driver maintained the patron offered him the money and that he did not ask for it.

He said he didn't return the money the next day as he couldn't find the patron and did not have his contact number.

The money was returned on the day he first met with Buswest about the complaint.

The driver claimed that during meetings with Buswest he was not allowed to speak, was cut off and was not allowed to finish speaking.

He told the commission he was terminated because of "previous hatred towards him for previously complaining over an unfair termination in which he was reinstated".


Decision

Commissioner Williams found the trigger for the driver's termination was "conduct that happened when he was not working".

The driver had:
  • borrowed money from a casino patron and not paid it back as agreed, and​
  • twice approached staff at the casino about his employment issues.

The commissioner rejected the driver's argument that his out-of-work conduct should not affect his employment.

The driver "has never at any time accepted that he has done anything wrong. He is unfortunately blind to the fact that his conduct has damaged the relationship between his employer and their client.

"The relationship was further damaged by him approaching Crown Casino staff and raising the issue of his job with them."

The commissioner also noted that the driver's "abusive and disrespectful" behaviour during a meeting with his employer could potentially have been another reason for dismissal.

It was also relevant he had been verbally counselled on multiple occasions for speeding and other poor driving behaviour.

The FWC ruled the dismissal was not harsh, unjust or unreasonable.

The application was dismissed.


Read the judgment

Ivance Cuculoski v Australian Transit Group T/A Buswest [2020] FWC 3361 (30 June 2020)

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