The amount of control that an employer can exercise over
employees in their private time is back in the spotlight, following
the recent decision of the Full Bench of Fair Work Australia in
Nick Kolodjashnij v J Boag and Son Brewing Pty Ltd 
While the traditional view is that employees are free to enjoy
their private activities without scrutiny from their employer,
courts and tribunals are increasingly allowing employers to
encroach into the non-work activities of their employees because of
the impact the behaviour might have on the employer's business
The employer, the employee, and the Responsible Drinking
Mr Kolodjashnij had been employed by J Boag and Son Brewing Pty
Ltd for eight years and had exemplary employee conduct.
Boags had in place a Responsible Drinking Policy and all
employees, including Mr Kolodjashnij, participated in training
which "made it clear to employees that if they were caught
drink driving, even outside of work hours and driving a private
(non-company) vehicle, this would be regarding as a serious breach
of the Responsible Drinking policy and could result in the
termination of their employment."
On a Friday night, Mr Kolodjashnij was charged with
drink-driving, in his own vehicle, with a blood alcohol content of
0.154. He voluntarily told Boags of his charge on his return to
work the following Monday morning and was immediately stood down
Mr Kolodjashnij and management had two further meetings about
the charges, after which time his employment was terminated. He
then took action against Boags claiming that the termination was
harsh, unjust or unreasonable.
At first instance, Commissioner Deegan found that this the
termination was not harsh, unjust or unreasonable, and this ruling
was upheld by the Full Bench.
In finding for Boags, Commissioner Deegan found that:
"An employer is entitled to have policies designed to
protect the interests of the business and a legitimate interest in
ensuring that such policies are observed by the workforce. There
would be little point in having policies that were not
This is significant, as the ruling does not allow for employers
to implement any policy regarding the behaviour of their employees
in their private time. However, it does reinforce the views
previously taken by tribunals and courts that policies which
regulate the behaviour of employees in areas which may impact on
the employer's business are reasonable. As Commissioner Deegan
"A manufacturer of weapons
or fireworks would have a legitimate interest in ensuring that its
employees did not use its products in a manner which was contrary
to law, might bring the product into disrepute or could contribute
to the case for greater restriction on sales or even complete
prohibition of the product. In my view the same applies to a
manufacturer of alcohol."
In views supported by the Full Bench, Commissioner Deegan
endorsed the findings in Farquharson v Qantas Airways Ltd
(2006) 155 IR 22 that it is not actual harm to a business that is
required. Instead, conduct which "might bring the product into
disrepute" is enough to warrant employee discipline based on
conduct which occurred in the employee's private time.
This view was also expressed in the New Zealand case of
Smith v The Christchurch Press Co Ltd  1 NZLR 407 in
which the court held that:
"It is not so much a
question of where the conduct occurs but rather its impact or
potential impact on the employer's business, whether that is
because the business may be damaged in some way; because the
conduct is incompatible with the proper discharge of the
employees' duties; because it impacts upon the employer's
obligations to other employees; or for any other reason it
undermines the trust and confidence necessary between employer and
Mr Kolodjashnij was not reinstated to his position at Boags. His
exemplary work record was not sufficient to protect him from the
potential damage done to the employer by his drink-driving
Issues from this case for employers
Employers can use policies to regulate the out-of-hours conduct
of their employees where there is a relevant link to the employment
requirements of the employee. As such:
an employee working in the alcohol industry can have a policy
for responsible drinking enforced against them;
an employee in the banking trade can have their employment
terminated for committing fraud offences in their private time
(Hussein v Westpac Banking Corporation (1995) 59 IR 103);
a member of the police force can be disciplined for behaviour
in their private time which is "patently inconsistent with the
desirable character of a police officer" (Wickham v
Commissioner of Police  SASC 6497).
Employers should review the interests of their business and
implement policies that protect these interests even if it imposes
obligations on employees in their private lives.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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