When employees do the wrong thing at work, it is common for their employer to commence formal disciplinary processes that can lead to dismissal.

Workplace misconduct such as dishonesty, theft, violence, sexual harassment, or intoxication is often easy for employers to recognise. It can be seen to damage the relationship between employee and employer and impact the safety and welfare of other employees, in some cases giving grounds for dismissal.

But what happens when an employee is dismissed for conduct outside of work?

The Fair Work Commission (the Commission) says that only in exceptional circumstances does an employer have a right to extend supervision over the private activities of employees. Essentially, the out of hours conduct must have some relevant connection to the employment relationship to warrant ending the employment.

What type of conduct can constitute grounds for dismissal?

With rising flexible work arrangements and social media use, the line between working (and being in the workplace) and an employee's private life outside work often gets blurred. Factors such as these can make it difficult for employers and employees to identify where their rights, duties and obligations begin and end. When looking at unfair dismissal cases related to out of hours conduct, the Commission must determine whether the employer had a valid reason to dismiss the employee relating to the alleged conduct.

Generally, an employer may dismiss an employee for conduct outside of work if:

  • Viewed objectively, the conduct is likely to cause serious damage to the relationship between the employee and employer; or
  • The conduct damages the interests of the employer; or
  • The conduct is incompatible with the employee's duty as an employee.

It is not sufficient for an employer to assert that out of hours conduct by an employee has the potential to affect their reputation or compromise the employee's capacity to perform their duties in some way. The decision to dismiss an employee must be based on evidence connecting the conduct with the employment relationship.

For example, the courts have held that dismissal for conduct outside of work was sufficiently connected to an employment relationship in circumstances where the employee was wearing a company uniform. Other examples include conduct outside work that contravenes workplace policies or codes of conduct and conduct that occurs at a location arranged by the employer, such as a conference.

The Commission also notes that criminal offences for conduct outside of work do not, alone, warrant dismissal. There must be a relevant connection between the criminal activity and the employment, such as if an employee is imprisoned for a serious offence and therefore unable to attend work for a significant period.

Can conduct on personal social media accounts warrant dismissal?

Cases of this type often involve social media posts made by employees on their personal accounts, with case law suggesting that what employees post can be grounds for dismissal if they are disparaging of their employer, threatening, or post content inconsistent with their position within the company.

Looking at the case of O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311, Mr O'Keefe was dismissed for making negative and threatening comments about a colleague on Facebook. In assessing his unfair dismissal claim, the Commission held that threatening another employee is a serious issue and not likely tolerated in any workplace. The wording and manner of the threat provided sufficient reason for Mr O'Keefe's employer to dismiss him on the grounds of serious misconduct, so the dismissal was not found to be unfair.