The Fair Work Commission examines an afterhours incident to determine whether it was a private matter or whether there was a sufficient connection to the workplace to allow the employer to act.  

One Minute Summary

• An altercation at a bar which occurred after a formal workplace event had finished resulted in one employee punching another employee to the ground.
• After an investigation the first employee is summarily dismissed and claimed unfair dismissal.
• A core part of the terminated employee’s argument is that the employer had no right to make a determination in what was essentially a private after hours altercation between two men who happen to be employees of the same employer.  
• The Fair Work Commission disagreed and examined a number of test cases before finding a sufficient connection between the incident and the workplace.
• In making this determination that there was a sufficient workplace connection the Commission included the impact on the ‘victim’ employee after the incident if the terminated employee was reinstated.

Mr Bell, who was employed since January 2020 as a Building Maintenance Officer with Arts Centre Melbourne (ACM), attended the organisation’s Christmas party at the centre on 9 December 2024 which finished at 7pm.  After the party had formally finished he, and approximately 20 other ACM employees, walked about 200metres down St Kilda Road to a bar called Beer DeLuxe.

Later that evening, Mr Bell was in the separated smoking area chatting with Mr Anderson – an ACM manager.  The two ACM employees had not met before. The area was adjacent to and visible from the main bar.  Both Mr Bell and Mr Anderson were somewhat under the influence of alcohol. In response to something that was said by Mr Anderson, Mr Bell responded with ‘that’s gay’. Mr Anderson, who was gay (but this was not known to Mr Bell before he said it) took offense and the exchange became heated. As the verbal altercation escalated Mr Bell took a swing at Mr Anderson connecting with the side of his head. Mr Anderson stumbled backwards, hit a standing gas heater and then fell to the ground. This was witnessed by another employee from the main bar and also caught on CCTV.

Mr Bell was suspended on full pay while a comprehensive investigation took place. Following the appropriate procedural fairness, he was summarily terminated on 19 December 2024. Mr Bell lodged an unfair dismissal claim which was heard in July 2025 and a decision handed down at the end of August 2026.  

In attempting to show the termination was unfair Mr Bell’s lawyer covered a lot of ground which the Commissioner responded to in a long and detailed decision.

The following will focus on two key areas - the background documentation and the employer’s ability to respond to such afterhours matters.

The Employment Contract, Code of Conduct and Enterprise Agreement

A key aspect of this decision is that ACM had very good documentation in place. Firstly, the employment contract contained a number of useful clauses and as well as providing a strong basis for enforcement of the ACM Code of Conduct.  The wording in the contract made the observance of ACM policies and guidelines a ‘condition of employment’.  Mr Bell was also required to behave in a manner that upheld the ACM values including a commitment to a safe and respectful workplace.  

The Code of Conduct also required all employees to comply with the law. Failure to comply with the law (and therefore the Code of Conduct) could result in disciplinary action up to and including termination.

The ACM Enterprise Agreement provided the basis for the summary termination by providing a description of serious misconduct that included assault.

Out of hours conduct – a complex area of workplace law

How the Fair Work Commission deals with out of hours misconduct has been the subject of several important test cases which were examined in this decision. From the test cases it is clear that the Commission wants to draw a line that divides out of hours conduct that is purely a private matter between two individuals and an out of hours conduct issue that relates back to the workplace – which the employer can and should respond to. The only problem with this is that there are potentially innumerable out of hours situations that need to be divided between whether its workplace related or not.

In this case Mr Bell’s lawyers argued that the out of hours altercation was not related to the workplace for the following reasons:

• Mr. Bell and Mr. Anderson were off duty and off-site at the time of the incident.
• There was no identification that the individuals were employees of ACM.
• There was no indication the individuals were acting in their capacity as employees of ACM.
• There is no evidence the reputation of ACM has been tarnished.
• There is no suggestion Mr. Bell’s relationship with ACM was seriously damaged.

Mr Bell’s lawyer claimed he acted in self-defence which was not substantiated by the witness or the CCTV.  He also attempted to argue that ACM bore a partial responsibility for the incident as it had not met its obligation to ensure the responsible service of alcohol at Beer DeLuxe.

In considering whether the conduct related sufficiently to the workplace, Commissioner Perica asked the question in relation to one of the test cases: “The question posed by Rose is, “in essence, is the conduct complained of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee?”.

The Commissioner examined the ACM Code of Conduct stating the scope of the policy describes ‘behaviour and interactions’ and stated ‘it applies to all staff across ACM who are engaging and interacting with other staff. He indicated this was not limited to the ACM workplace site. Additionally, the Commissioner found adherence to the ACM values was something that did not cease once an employee left their workplace. Similarly, the Enterprise summary termination clause (which referred to assault) was not limited to conduct at work.

Additionally, the Commissioner found that Mr Bell’s contract, which included treating co-workers with respect, extended beyond the workplace.  

“It is not possible to show a person respect in the process of striking them to the head. Physical violence against another person must be close to the nadir of disrespect.”

In relation to the location at which the incident occurred the Commissioner stated:

“There is at least some nexus between the work Christmas Party and the group of ACM workers coming together at Beer DeLuxe.  Mr. Bell and Mr. Anderson’s presence at Beer DeLuxe was not in any way organised, authorised or proposed by ACM, but they were only at the location and in the company of each other as consequence of attendance at the earlier ACM Christmas Party.”

Commissioner Perica then referred to the effect of the incident on Mr Anderson stating:

“The fact Mr. Anderson was struck by Mr. Bell out of hours and outside of the workplace does not change the ongoing effect the conduct had at the workplace in following days. The nature of the conduct and its predictable effects on Mr. Anderson meant it would have continued to affect his health and wellbeing at work. In so far as Mr. Anderson suffered these effects because of Mr. Bell, the incident was likely to cause serious damage to the ongoing relationship between Mr. Bell and ACM. ACM owed Mr. Anderson a duty to ensure he felt safe.”

The Commissioner listed the following factors in concluding that the incident was connected to Mr Bell’s workplace and employment (and not simply a private altercation):

• The physical proximity of the incident to ACM
• A group of ACM employees were present at Beer DeLuxe directly after the work Christmas Party who were continuing to interact with each other,
• Mr. Anderson and Mr. Bell were both ACM employees.
• The effects of the assault on Mr. Anderson, which he describes as a “raw experience”, had ongoing effects on Mr Anderson. He was “afraid to work alone”, he was “shaken up” and “he did not know what action Mr. Bell might take”. The ongoing consequences of the assault connected the out of hours conduct to the workplace and had serious effects on the capacity of ACM to continue to employ Mr. Bell.

The Commissioner determined Mr Bell’s summary dismissal was warranted and dismissed his unfair dismissal application.

Commentary

It is important to empathise the importance the wording in the Employment Contract and Code of Conduct played in this case. It provided the essential foundation for the Commissioner to base his decision on. Such documents play a background role on a day-to-day basis but becomes essential when things go wrong.

The Enterprise Agreement played a secondary role providing the termination clause. However, the wording in the National Employment Standards would have been sufficient as they allow for summary dismissal in this case.

A stuff up in the investigation by ACM in this case was not getting a copy of the CCTV footage from Beer DeLuxe immediately after the incident. They had notes from a detailed description of the incident as it was described to the investigator by one of the Bar’s Managers (over the phone) from which it could be determined what actions were taking place and by who. When it came to obtaining the footage for the Fair Work hearing some months later it had been lost. It they did not have a witness observing the incident in the smoking area from the main bar it would have resulted in an interesting ‘he said - he said’ situation.

The discussion whether the afterhours incident is sufficiently connected to the workplace provides some useful pointers for employers but it will always be a grey area as far as Fair Work Commission decisions go based in each unique set of circumstances. An interesting part of this decision was the discussion of the impacts at the workplace after the incident and how the personal impact on Mr Anderson provided a connection between the offsite incident and the workplace. This point would have to be a consideration in nearly all off-site incidents.

Managers who wish to discuss their potential discipline or termination scenarios should contact Michael at Hunter Employee Relations.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au

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