Cotton on Kids has commenced investigations against the employee who attempted to ‘egg’ Prime Minister Scott Morrison. Earlier this month, Amber Holt attempted the stunt before a shift at Cotton On. Holt has since been charged with common assault over the incident. Amidst investigations by the Cotton on Group, the question has emerged as to whether an employer can sack an employee for actions undertaken in their own time. Under Australian employment law, the answer is yes. The common law requires employees to cooperate with their employer and refrain from conduct that would undermine the business or bring it into disrepute. Increasingly, courts have applied these principles in a manner which enables employers to control the personal ‘out-of-work’ conduct of employees. It follows that within Australian, employees can be lawfully terminated for ‘harassment’, ‘discrimination’ or ‘bullying’ occurring outside of work hours if the employer can show that act brought the business into disrepute.
WA Nationals have sacked their State Director, Simon Glossop, for taking time off work to recover from a stroke. Glossop, having suffered a stroke in February of this year, used sick and holiday leave for the past three months. Once Glossop expended these entitlements, he requested further unpaid leave. Despite his intention to return to work within the next six months, the WA Nationals refused his request and terminated his contract without prior notice. In a statement released this week, Mr Glossop said that ‘as you can imagine I’m still fairly fragile with my health, so it was very upsetting for me’. ‘It was just because of a clause in the contract that said [I would be terminated] if I didn’t roll up for work for four weeks,’ he added. Glossop has since made a formal request to the Nationals WA President, James Hayward, to reserve the decision. Hayward has since responded by wishing Glossop all the best in recovery but has declined to make further comment in relation to the dismissal. If not reinstated, Glossop said he will pursue an unfair dismissal claim against his former employer.
Last month, the United States Congress introduced the ‘EMPOWER’ bill in response to the atrocities surrounding the Harvey Weinstein-era. If passed, this bill would require public companies to report sexual-harassment settlements. This would thwart the use of non-disclosure agreements (NDAs) as a tool to maintain confidentiality and preserve companies’ reputation. Although commentators within Australia have criticised the use of non-disclosure agreements, they have also warned that banning NDAs ‘would not bring victims greater access to justice’. This is because ‘banning NDAs would leave employers with little reason not to maintain litigation’. As John Wilson reported, in the era of reputational risk, companies will defend ‘the matter through to court as necessary to achieve public recognition of its innocence’. Wilson also predicts that restrictions on NDAs will diminish the number of reported sexual harassment cases. This is because employees may be reluctant to elevate the matter to court. Another issue lies in the expense and delay involved in litigating sexual harassment claims. Not only are matters likely to be drawn out over several months, but litigation often takes a significant emotional toll. While Australia’s Sex Discrimination Commissioner, Kate Jenkins, has stated that NDAs inhibit the investigative processes of statutory bodies, banning confidentiality agreements altogether may not solve this issue.
In a recent press conference, a teary-eyed Bill Shorten pledged to tackle age-based workplace discrimination. The pledge came after The Daily Telegraph condemned Shorten for speaking about his mother during an interview on the ABC program, Q&A. During the interview, Shorten spoke about the hardships and obstacles his mother faced in entering the legal profession at 50 years old. In light of the attacks on his mother’s legacy, Shorten has affirmed his commitment to ensuring equal opportunity within the workplace amongst ageing Australians.