Understanding the boundaries of employee conduct outside of work hours is crucial. While employers can’t generally control what an employee does in their personal time, there are instances where out of hours behaviour can impact the workplace and warrant disciplinary action, including dismissal.
When out of hours conduct matters
For out of hours conduct to be a valid reason for dismissal, it must be sufficiently connected to the employee’s role. The case of Rose v Telstra Corporation Ltd provides clear guidance on this:
- The conduct must be likely to cause serious damage to the relationship between the employee and employer.
- The conduct must damage the employer’s interests.
- The conduct must be incompatible with the employee’s duties.
In essence, the conduct must be serious enough to show that the employee is rejecting or repudiating their employment contract. Without such considerations, an employer has no right to control or regulate an employee’s out of hours conduct.
Key factors to consider
Several factors will be taken into account when determining if out of hours conduct is sufficiently connected to employment:
- the nature and context of the conduct;
- time and location of the incident;
- the circumstances surrounding the conduct;
- the employee’s role and duties;
- the nature of the employer’s business;
- terms of the employment;
- the impact of the conduct on other employees and on the business; and
- any other relevant factors.
Out of hours conduct and social media
Social media activity outside of work hours is another form of out of hours conduct that can impact the workplace. While there are many ways conduct on social media can be connected to employment, some clear examples include:
- posting negative comments about the employer, clients, or customers;
- social media activity that supports findings of misconduct, such as posts evidencing false medical certificates;
- breaches of confidential information belonging to the employer; and
- inappropriate conduct, harassment, or bullying of employees or individuals connected with the employer.
Examples of valid reasons for dismissal
Here are some scenarios where out of hours conduct has been deemed a valid reason for dismissal:
- Sexually harassing a co-worker including on social media and at work functions (e.g. Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156).
- Out of hours drink driving conviction which also breached the employer’s responsible drinking policy (e.g. Kolodjashnij v J Boag and Son Brewing Pty Ltd [2010] FWAFB 3258).
- Social media posts that are inconsistent with the values of the employer as well as its code of conduct and anti-harassment policies.
- Losing a licence or qualification required in order to perform an inherent requirement of the position (i.e. a taxi driver losing their licence due to drink driving; a childcare worker losing their working with vulnerable people clearance).
Lessons for employers
Employers must be very careful when considering dismissing an employee for conduct occurring outside of work. It’s important to make sure there’s a clear connection between the employee’s actions and their job before taking any action.
Key takeaways
- Check the Connection: Make sure the out of work behaviour directly affects the employee’s job or the company’s reputation.
- Review Policies: Ensure your workplace policies and Code of Conduct clearly state what behaviour is acceptable and what isn’t.
- Be Consistent: Apply the same rules to all employees to avoid claims of unfair treatment.
- Document Everything: Keep detailed records of the behaviour and any steps taken before making a decision.
- Seek Legal Advice: If you aren’t sure, consult with an employment lawyer to ensure you are following the law and protecting your business.
For assistance in determining whether an employee’s out of hours conduct can give rise to disciplinary action, you can contact Peter Foster or Emily Creak, our experts in employment and safety law.
| Peter Foster Associate T: (03) 6235 5153 E: pfoster@pageseager.com.au |
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| Emily Creak Principal M: 0400 955 183 E: ecreak@pageseager.com.au |
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Published: 9 July 2024
