Did 'Budgie Nine' member really need to resign? By Mike Toten on 19 October 2016 Recently, nine Australian tourists were arrested and detained in Malaysia after they stripped off to their “budgie smugglers” at the Malaysian Formula 1 Grand Prix. The relevance of this incident to employment issues would be obscure except that one of the men worked for the federal Minister for Defence Industry and resigned from his job shortly after returning to Australia. This article evaluates the incident in the context of conduct that occurs off the job but may be “connected to employment” and looks at possible lessons for employers and employees. What happened The nine men attended the Grand Prix in Malaysia. After the race, they stripped off and repeated a well-known Australian “chant” in front of the crowd. However, their “budgie smugglers” contained a pattern of the Malaysian flag. Many locals apparently took offence to both the method of displaying the flag and the brevity of the clothing in a country with a conservative attitude towards public display of human flesh. The men were arrested and detained for about four days, but were eventually issued with warnings after they apologised to the court, and then released without charge. Australian media reports publicly named all nine men and published details of their occupations and employers. In particular, they emphasised that one man was employed on the staff of Defence Industry Minister Christopher Pyne. The Australian Prime Minister commented that the nine men “should carefully consider their futures”. Shortly after, the man resigned from his job, and both the employee and employer have publicly claimed his resignation was entirely voluntary. The media also made much of the men’s backgrounds, regularly pointing out that they came from Sydney’s “wealthy” North Shore, had attended private schools and had well-paid jobs. It also added that they had performed similar types of celebrations at sporting events in other countries. Was there a 'connection' to employment? On available information, such a link appears hard to justify. The men were tourists on holiday and were not representing their employers at the time. Their employers were not identified by their actions, only by the media after the event. It seems likely that if the men had a less “privileged’ background, such reporting may have appeared in less detail, if at all. Many cases involving off-the-job conduct have been determined by whether the conduct had the capacity to damage the viability or reputation of the employer’s business. When the man resigned, it was suggested that the reason was to avoid causing embarrassment to the Australian government or the Defence Industry Minister, who were his employers. Perhaps the reputation of Australian tourists was damaged by the men’s conduct, but it is hard to find any evidence the government or the minister suffered in any way. Public criticism was mainly directed at the nine men themselves for being insensitive to the culture of another country, with many suggestions that they were unworthy of holding highly-paid jobs. There is no suggestion that the government or minister condoned their behaviour or were by association culturally insensitive. The matter has not been raised in Parliament. What were the prospects of a successful unfair dismissal claim? As noted above, the public statements from all parties involved said the employee voluntarily resigned. Media reports have suggested the employee’s salary was about $150,000, which is above the remuneration threshold for making claims of unfair dismissal. But what if the employee had been dismissed and was eligible to make a claim? The employer has to prove that the employee breached a term of his/her employment contract or an organisation policy (such as a code of conduct applying to off-the-worksite activities). It also has to prove the employee’s conduct was connected to employment and that it had the capacity to cause damage to the viability or reputation of the employer’s business. Factors such as the employee’s past employment record and how the employer implemented the dismissal are also relevant to its “fairness”. Cases involving “offsite” conduct are often controversial, particularly where the use of social media is involved, and the individual circumstances of each case are more important than normal. In this case, it seems likely that a claim of unfair dismissal would have considerable merit because the employer would struggle to prove either a connection with employment or damage to the business. But the situation could be different if the men had been in a sponsored corporate box with the employer’s name clearly visible. Embarrassment to the employer and a potential backlash to its trade with Malaysian customers could then become factors. It could also be argued that the employees were representing the employer at a public event. Cultural insensitivity the main problem What if a bunch of Malaysian tourists had stripped off at an Australian race meeting and were wearing only Australian flags? It would be likely to offend some people who hold the view that the Australian flag must be respected and should never be ridiculed or demeaned in public. However, it is likely most people would not be bothered by it or would see a funny side to it. Men wearing only “budgie smugglers” are a common sight in Australia, including a former Prime Minister! The above underlines the importance of context and prevailing culture. What may have been regarded as foolish but fairly harmless conduct in Australia was more likely to cause offence in a country with more conservative attitudes and dress standards. The men were originally arrested for both public indecency and “intentional insult with intent to provoke a breach of the peace”, although the Malaysian authorities eventually backed away from this initially tough stance. The main mistake the men made was to be insensitive and disrespectful to the fact that another country and culture had different cultural values and dress standards to Australia. Celebrating in “Australian style” was inappropriate and caused offence to many locals, particularly by using the Malaysian flag. Lessons for employers and employees The incident provides the following lessons for organisations that send employees to work in overseas countries: Do some background research into the host country’s values and culture before travelling and encourage employees to do likewise. Provide cultural awareness training before the employee travels. Check policies on issues such as employee conduct and dress standards to ensure they cover situations that may arise overseas. Remind employees that conduct off the job, such as attending social or sporting events, or using social media, can become connected to employment if the employer can be identified by others and the conduct has the capacity to damage the viability or reputation of the employer’s business. Provide specific examples of inappropriate conduct and specify the sanctions that may apply. Remind employees that evidence of foolish or inappropriate conduct tends to be spread around social media and remain on the public record. For example, photos of the “Budgie Nine” incident were widely circulated and shared and the media widely published the men’s names and details of their background and employment. Any future prospective employer can do a social media search and will easily find evidence of the incident, which may make them more hesitant to employ the men involved.