When employees engage in out-of-hours misconduct, it can
negatively affect the reputation of the employer. When this occurs,
employers often want to (and sometimes need to for damage control
reasons) take disciplinary action against the employee/s concerned.
If you want to know when it is possible to dismiss an employee for
engaging in out-of-hours misconduct, read on.
What you need to know:
There must be a connection between the employment relationship
and the out-of-hours misconduct.
The out-of-hours misconduct must regarded as being likely to
cause serious damage the employment relationship and/ or damage the
employer's interests and/or be incompatible with the
employee's duty as an employee.
The out-of-hours misconduct must be of such gravity as to
indicate a repudiation of the employment contract by the
The advent of technology and the ability to be 'on line'
almost anywhere at any time has negated the traditional view of
work (i.e. sitting at a desk from 9.00am to 5.00pm). This creates
interesting discussions in terms of workplace flexibility but it
also creates a unique set of issues for employers who are
increasingly finding themselves unable to monitor and/or regulate
the conduct of employees outside of, but otherwise connected to,
When misconduct does occur outside of the workplace, it is
generally outside of the control of the employer which means that
confidentiality can be compromised. As such, it is all too easy for
salient incidents to go 'viral' which can cause irreparable
harm to the employer's reputation. In such instances, the knee-
jerk reaction of employers is to terminate the employment of the
employee/s concerned but this is not always possible.
Michael Page Recruitment recently found itself at the end of a
media maelstrom when a group of 22 employees acted out during a
weekend at Mount Buller's Reindeer Ski Club. During the trip,
which was not company-funded or sanctioned, the employees allegedly
had a rambunctious couple of nights during which they became
extremely loud and intoxicated, wreaked havoc on the premises (and
subsequently refused to clean it up) and physically threatened the
managers of Ski Club. The conduct was reported to have been so bad
that the police were required to attend the premises
In a Facebook post that subsequently went 'viral', one
of the managers of the Ski Club condemned the behaviour of the
Michael Page employees. This Facebook post was picked up by media
outlets leaving Michael Page scrambling into damage control. In a
statement that it released on the Monday morning, Michael Page
apologised for the conduct of its employees and stated that an
internal investigation was underway and that all individuals
allegedly involved would be interviewed and appropriate
disciplinary action would be taken.
The accepted authority in these sorts of matters is Rose v
Telstra Corporation Limited (1998) AIRC 1592 (Rose v Telstra). In
accordance with this decision, an employee's employment may be
terminated because of out-of-hours conduct provided that:
The conduct is likely to cause serious damage to the
relationship between the employer and the employee; or
The conduct damages the employer's interests; or
The conduct is incompatible with the employee's duty as an
Essentially, the conduct must be of such gravity as to indicate
a rejection or repudiation of the employment contract by the
Given the principles of Rose v Telstra, whilst we may never know
what disciplinary action was taken by Michael Page against the
employees, it is fair to surmise that several dismissals could have
been implemented given the reputational damage caused to the
Michael Page brand.
Applicant v Employer  FWC 506
The 2015 decision of Applicant v Employer  FWC 506
provides guidance on the issue of out- of-hours misconduct and
whether it constitutes a valid reason for the termination of an
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.Madgwicks is a member
of Meritas, one of the world's largest law firm
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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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