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  AIRC 1592 at
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
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;
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
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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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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