By MDC Legal
Not so long ago, there was a clear line between work and play – between conduct at work and employees’ private lives, with the latter being none of the employer’s business.
Now, due to advances in technology (particularly information technology), the expansive reach of social media, and because employees are increasingly working from anywhere, the boundary between work life and private life has blurred.
More frequently, what an employee does outside of the workplace, and outside of work hours, can impact on the employment relationship. When it has a negative impact, employers may be justified in taking disciplinary action for what may have once been considered off-limits private behaviour.
To warrant disciplinary action, the employee’s out of hours conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or the conduct damages the employer’s interests; or the conduct is incompatible with the employee’s duties as an employee: Rose v Telstra Corporation Ltd [1998] AIRC 1592 at [30].
That may include behaviour that impacts negatively on fellow employees, and exposes the employer to vicarious liability. Obvious examples are bullying, harassment and discrimination of one employee by another. Yet, case law shows that what out of hours behaviour may be justified disciplinary action is not settled.
Various factors are considered when assessing the reasonableness of the disciplinary action taken. For example:
- an employee dismissed for social media posts calling his employer’s clients “spastics and junkies” was reinstated (despite his conduct being considered a valid reason for dismissal) because the dismissal was found to be harsh in light of a number of mitigating circumstances, including the employees long history of employment;
- an employee dismissed following sexually lewd behaviour at a hotel after a staff Christmas party was found to have been validly terminated because, not only because of the lewd conduct as such, but she was not honest with the employer during its investigation, therefore the employer could not be assured of her honesty in the future;
- an airline employee who purchased drugs on his day off overseas was validly dismissed because of the employer’s continuing responsibility for its crew throughout the pattern of duty;
- while a criminal offence may not of itself be enough to warrant termination, a public sector employee’s criminal conviction for sexual offences against a minor was found to be a valid reason for termination because the conviction was sufficient to damage the employment relationship and the interests of the employer;
- an employee stating where they work on their Facebook page could establish the requisite link between employee and employer to justify dismissal for out of hours conduct in making derogatory posts, even if the posts do not relate to their employment; and
- an employee who, following a relationship breakup with a work colleague, posts intimate images or sexual videos on social media (an act known as “revenge porn”) may be validly terminated because of the ongoing harm and violation the publication can cause to the victim and the effect it may have on her dealings with their other work colleagues.
Whether an employee’s out of hours conduct justifies disciplinary action or termination depends on the circumstances of each case, but the litmus test is whether the conduct is inconsistent with the employment relationship.
Employers can minimise their risk of harm to reputation and brand and risk of vicarious liability for an employee’s out of hours behaviour, by having a suitable workplace code of conduct and social media policy that sets out what is and isn’t acceptable behaviour that may be associated with the employer’s business, employees or workplace. Employees should be informed in clear terms on their rights and obligations and the circumstances under which they may be disciplined or terminated for their conduct beyond the workplace.
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