As the year draws to a close, many employers will be celebrating the end of 2015 with their employees, and other work colleagues. Work functions such as Christmas parties are a great opportunity to have fun with colleagues, but as is still too often the case, work Christmas parties can be a source of considerable distress and can cause significant loss and damage to the business and its employees. This is especially the case when inappropriate workplace behaviour put employers at risk of sexual harassment, bullying, discrimination and unfair dismissal claims.
I have often been asked whether an employer can terminate an employee’s employment for serious misconduct, if the employee has either resigned and is working out their notice, or they have been given notice of termination, and are working out the notice.
Employers often wish to have their employees make an express contractual promise not to engage in competitive activities or to use the company’s confidential information after the termination of their employment. Most often, employers do so by requiring their employees to sign employment contracts which contain restraint of trade and confidentiality clauses.
The Commission needed to determine firstly whether the conduct under examination was in fact behavior that was repeated unreasonable behavior. The Commission stated that what is required is “repeated unreasonable behavior by the individual or individuals towards the Applicant worker”. The Commission recognized that there is no specific number of incidents required for the behavior to represent “repeated”, provided there is more than one occurrence and nor does the same specific behavior need to be repeated.