When Off-Duty Conduct Costs You Your Job

The ‘Bad’ in the ‘Good, the Bad and the Ugly’ from our podcast on Independent Contractor Update from 27 June 2025.

When Off-Duty Conduct Costs You Your Job: FWC Dismisses Unfair Dismissal Claim Over Elevator Altercation

In Zheng v Citic Pacific Mining Management Pty Ltd ([2025] FWC 1471), the Fair Work Commission dismissed an unfair dismissal claim brought by a worker who was terminated following an altercation in an office elevator before work.

The case is a clear reminder that “off-duty” conduct can still justify dismissal if it has a sufficient connection to the workplace and employer interests.

What Happened?

Mr Zheng was employed as an Operator Maintainer Technician by Citic Pacific Mining Management (CPMM). On his way to work one morning, he became involved in a physical and verbal altercation with a woman in the elevator of the building where CPMM’s Perth office is located.

CCTV footage showed Mr Zheng deliberately pushing the woman in the back and yelling “f* off”** after she attempted to pass him while exiting the lift. Another employee witnessed the incident and reported it. Following an internal investigation and review of the footage, Mr Zheng’s employment was terminated for misconduct.

Mr Zheng argued that:

• The incident occurred outside work hours and was not work-related;
• His actions were in self-defence; and
• He was not properly informed of the allegations or given a fair chance to respond.

FWC’s Decision

Commissioner Lim found that Mr Zheng’s conduct was deliberate, aggressive and unjustified. The elevator was either part of CPMM’s workplace or closely connected to it, being the only access point to its office.

Key reasons the dismissal was upheld:

• Workplace link: The incident occurred just before Mr Zheng’s shift, in a space used solely to access the workplace.
• Reputational impact: Mr Zheng was wearing a CPMM lanyard and witnessed by another employee, creating a direct impact on CPMM’s reputation and internal culture.
• Behavioural breach: The actions breached CPMM’s Code of Conduct, which prohibits abusive or antisocial behaviour.
• Lack of remorse: Mr Zheng showed no accountability and continued to downplay the incident even at the hearing.

Although the Commission accepted that CPMM’s investigation had some procedural shortcomings (e.g. failing to notify Mr Zheng of the valid reason before dismissal and informing him by phone), it ultimately found that these did not outweigh the seriousness of the misconduct.

Key Takeaways for Employers

1. Misconduct outside of work hours can justify dismissal if there’s a sufficient connection to employment.
2. Physical aggression and abusive language, even in shared spaces like lifts, may be treated as workplace misconduct.
3. While procedural fairness matters, serious conduct breaches can still justify dismissal even where the process isn’t perfect.
4. Employers should document investigations clearly and communicate expectations of behaviour both in and around the workplace.

This case reinforces the importance of maintaining professionalism in all spaces linked to the workplace and ensuring your conduct aligns with company values, even before you clock in.

This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.