Australia: After-hours employee conduct: "What goes on tour stays on tour" – or does it?

Last Updated: 9 January 2013
Article by Kathryn Dent

After-hours conduct and its connection to employment

It is no wonder that as technology (accessibility of employees through email and mobile phones) blurs the borders and boundaries of the workplace, employers are finding it both difficult to regulate workplace behaviour "after hours" as well as finding it a necessity.

The types of after-hours behaviour by employees which end up being pursued by or against employers in court commonly involve sexual misconduct (which often involves alcohol), injuries sustained at events and of more recent times the (mis)use of social media (the latter being the subject of another article in this edition of Strateg-eyes).

Employers should consider both implementing rules for, and disciplining for breaches of, "afterhours" workplace behaviour if they:

  • sponsor or host "social" events attended by employees
  • have employees attending social events connected to their workplace (eg social events organised by customers, clients or suppliers)
  • have employees going away or attending work conferences together
  • provide accommodation for employees which results in employees living in close proximity to each other
  • are sensitive about reputational and brand damage that may be sustained by employee misbehaviour
  • have employees using social media

You're not the fun police, it's the law...

The incentive to regulate employees' behaviour outside the normal work environment are the legislative obligations which exist for employers as well as individuals (officers and employees alike) under both work health and safety and antidiscrimination legislation.

In particular, the primary duty of care of the person conducting a business or undertaking ("PCBU") under the harmonised work health and safety legislation (in New South Wales this is s.19 of the Work Health and Safety Act 2011) will apply if the after-hours event involves workers being "at work in the business or undertaking" . This duty also extends to ensuring that the "health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking". If the after-hours conduct triggers this duty, and that will be debateable given the wording of the duty, then officers and "workers" (employees and a range of others) are also implicated as they have a duty to either, in the case of officers, exercise due diligence to ensure the PCBU complies with its duties or in the case of workers "(w)hile at work", to take reasonable care of their own health and safety and to ensure their acts or omissions do not endanger the health or safety of others (and also to comply with policies and instructions).

The Sex Discrimination Act 1984 (Cth) makes it unlawful for employees and other "workplace participants" to sexually harass each other as well as for an employer to sexually harass an employee. As regards "workplace participants" the area within which sexual harassment is regulated is at the workplace which the Act defines as "a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant". The incentive for employers to seek to prohibit unacceptable workplace behaviour at after hours events is set out in s.106 which provides employers with a defence to the acts of employees and others, for which they are (otherwise) vicariously liable, provided they have taken all "reasonable steps". In the context of sexual harassment the case of Lee v Smith & Ors 1 should serve as a solemn reminder. In this case part of the conduct complained about occurred at a private dinner party attended by work colleagues and where the complainant was allegedly raped by a work colleague against whom she had previously made complaints regarding his sexual harassment of her.

In South Pacific Resort Hotels v Trainor 2 the sexual harassment which allegedly occurred after hours involved employees who lived in employerprovided accommodation. This case recognised that "in connection with employment" could have a broad application in terms of an employer's liability for after-hours conduct.

Where does the workplace stop and start?

The work health and safety and anti-discrimination laws provide the legislative basis enabling and indeed justifying the regulation of workplace behaviour and the continuation of the working relationship, such as at a regional conference (see Leslie v Graham3 ), in a car park used by employees (see Dobson v Qantas Airways Limited 4 ) or where workplace events led to an afterhours assault (see The Australian Workers' Union, Tasmania Branch v Adelaide Mushrooms Nominees Pty Ltd t/a Tasmanian Mushrooms 5 ) will continue the employer's "workplace obligations".

While it was made clear in the context of a workers' compensation claim in the NSW Court of Appeal recently that work social events and recreational activities "can well form part of the course of employment" (Pioneer Studios Pty Ltd v Hills 6 ), equally, it may be that after-hours conduct does not necessarily fall within the realm of the workplaces that legislation covers, but there is still a reputational risk created by employees' after-hours behaviour. Can an employer still require an employee to behave in a particular way? The answer is, in short, yes but on what basis? Older case law based such intervention and regulation on there being a "relevant connection to employment" 7 and this case law is still good authority.

This issue was recently considered in John Pinawin t/a RoseVi.Hair.Face.Body v Edwin Domingo 8 where, in an unfair dismissal context, Fair Work Australia qualified the notion that "(g)enerally employers have no right to control or regulate an employee's 'out of hours conduct'. Fair Work Australia affirmed that "if an employee's conduct outside the workplace has a significant and adverse effect on the workplace, then the consequences become a legitimate concern to the employer. A range of 'out of hours conduct' has been held to constitute grounds for termination because the potential or actual consequences of the conduct are inconsistent with the employee's duty of fidelity and good faith. This concept is closely allied to the implied term of 'trust and confidence' in employment contracts which relates to modes of behaviour which allow work to proceed in a commercially and legally correct manner". In this case the fact that the employer was a small business with a close personal relationship with the employee was another basis on which summary dismissal based on drug use, was justified.

In McManus v Scott-Charlton 9 the court held that an employer may legitimately seek to assert authority over any conduct which threatens order in the workplace or the reputation of the enterprise and this proposition has subsequently been approved in Farquharson v Qantas Airways Limited 10 and Kolodjashnij v Boag 11 . The "order in the workplace" may represent the chain of command such as the relationship between managers and those under their supervision. Where conduct has a bearing on that relationship then the employer's concern about it (and subsequent action) will be legitimate - Civil Service Association of WA v Director-General 12 ; Gera v Commonwealth Bank 13 ; Kalouche v Legion Cabs 14 .

And, in this age of social media, insulting and threatening comments made about another employee after hours but on a public forum can provide the basis of serious misconduct and summary dismissal 15 . However, comments made on Facebook that are foolish and inaccurate outbursts that do not damage an employer's business may not provide a valid reason for dismissal 16 . Despite the finding in Fitzgerald's case, Commissioner Bissett did state "(i)t would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences".

How do you regulate the behaviour?

The regulation of appropriate, or inappropriate, after-hours workplace behaviour may be contained within any workplace behaviour policy or policy on social media, sexual harassment, discrimination or bullying because whether it occurs during or after work hours, the types of acceptable and unacceptable behaviour will be the same and should be treated accordingly. Another policy where conduct may be regulated is in any applicable drug and alcohol policy.

The only difference between during and after-hours behaviour will be that after-hours behaviour may be more difficult to link to the workplace 17 and thus employment in any given factual scenario, however the authorities, as outlined above, will allow an employer to take action where there is a connection between the context in which the after-hours conduct occurs and the employment and so the fact that such a difficulty may arise (in terms of a connection) in the future should not be a deterrent to exercising both in the documentation and practically, an appropriate level of control. The requisite connection between the conduct and the employment may be established by the laws referred to earlier or even where there is a threat to the "order of the workplace" or the employer's reputation or where the employee's conduct amounts to a breach of a contractual duty. As regards breach of contract, such an action may also be available (in addition to an implied breach of contract) if the employer's contract of employment with its employees sets out reasons which may lead to termination (summary or with notice) and these include conduct which "brings or may bring" the employer into disrepute.

As with all policies and contractual terms, the sanctions for any breach should be clear and they should be rigorously implemented and enforced, consistently as well as updated as may be required from time to time.


After-hours conduct can legitimately be the subject of employer regulation and disciplinary action through both the contract of employment and employment policies if it is necessary either in order to either ensure compliance with the employer's legislative work health and safety or anti-discrimination obligations or if it may cause damage to an employer's reputation or order of the workplace. It may be, in any given situation where damage or injury results from an employee's after hours conduct, that an employer can and should divorce the connection from employment and the workplace, however, it is prudent to at all times reserve the right to control actions which may lead to this liability given the encroachment of the workplace into people's private lives and the ever-increasing liability which results.


1 [2007] FMCA 59
2 [2005] FCAFC 130
3 [2002] FCA 32
4 [2010] FWA 6431
5 Commissioner PC Shelley – T10691, 5 September 2003
6 [2012] NSWCA 324
7 Rose v Telstra Corporation Limited (1998) unreported, AIRC
8 [2012] FWAFB 1359
9 (1996) 70 FCR 16
10 [2005] AIRC 982
11 [2010] FWAFB 3258
12 [2002] WASCA 241
13 [2010] FMCA 205
14 (1998) 81 IR 415
15 O'Keefe v Williams Muir's Pty Limited t/a Troy Williams The Good Guys [2011] FWA 5311
16 Fitzgerald v Dianna Smith t/as Escape Hair Design [2010] FWA 7358
17 Streeter v Telstra Corporation Limited (2007) AIRC 679

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions