An employer’s right to dismiss its employees for conduct engaged in outside of work hours is a contentious issue. Although it is generally accepted that an employer does not have the right to control its employees outside the workplace, there are certain circumstances where the conduct of an employee will constitute a breach of the employment contract, or offend the employment relationship to such an extent that the action will warrant termination of the employee’s employment.

The case law suggests that the relevant test is whether there is a “sufficient nexus” between the employee’s actions and their employment. In any event, it is difficult to discern any predictive principles as each situation will be assessed on a case-by-case basis. This article will provide an overview of cases that illustrate this issue in practice.

Public Employment Office Department of Attorney General & Justice v Silling [2012] NSWIRComm 118

Mr Silling was employed as a corrections officer by the Department of Corrective Services. Mr Silling was dismissed after his third conviction for domestic violence. After the first conviction in 1998, Mr Silling received an official warning from his employer stating that any “private activity” which may adversely affect his job performance will be regarded as “work-related” and such activity may include alcohol abuse and violent behaviour. After the second conviction, Mr Silly disclosed the conviction to his employer but no disciplinary action was taken. After the third conviction, Mr Silly was dismissed.

Commissioner Bishop of the NSWIR found in favour of Mr Silling on the basis that there was no evidence that Mr Silling’s work performance was affected by the convictions, and there was no evidence to suggest that the convictions would affect the reputation of the employer, despite the employment concerning law enforcement against persons with convictions. Among other things, the Commissioner considered Mr Silling’s 15 year record of unblemished service, his apparent remorsefulness, and the fact that the convictions were for summary offences.  

The employer appealed the decision. The appeal was dismissed and Commissioner Bishop’s decision was upheld.

Damien O'Keefe v William Muirs Pty Ltd t/a The Good Guys [2011] FWA 5311

Mr O’Keefe was dismissed for serious misconduct after posting negative comments about his employer on his facebook page as follows: “…how the f*** can work be so f***ing useless and mess up my pay again. C***ts are going down tomorrow.” Mr O’Keefe also made a number of threats directed at his co-workers.  The employer relied on the Employee Handbook that had been distributed to employees, and required employees to be polite and courteous in their dealings with co-workers.

Fair Work Australia (“FWA”) held that although the posts were made outside of work hours at home on Mr O’Keefe’s personal computer, there was still a sufficient connection between the employee’s conduct and his employment, and there had been a contravention of the Employee Handbook.

Rose v Telstra Corporation Limited (1998) AILR 45

Mr Rose was dismissed after being involved in a heated altercation with another Telstra employee, which resulted in him sustaining significant injuries. The incident occurred in a hotel room and Telstra relied on the fact that the employees had received a travel allowance and were provided with the company’s code of conduct, which provided that employees must not engage in conduct that discredits Telstra’s image. Mr Rose argued that the conduct was too remote from his employment as neither employee was in Telstra uniform, and they were not on duty at the time of the incident.

Vice President Ross of the AIRC concluded that Mr Rose’s conduct did not justify dismissal because the incident took place outside of work hours, the employees were not wearing Telstra uniforms, and the employees were not “on call” at the time. The fact that the incident occurred in a private hotel room rather than a public place was also taken into consideration.

Lessons

The cases show that a sufficient connection between the offending conduct and the workplace will need to be established to justify a termination of employment. Some of the factors that the courts will consider in determining whether this connection exists include, but are not limited to, the following:

1. whether the employee was in uniform when they engaged in the alleged misconduct;
2. whether the conduct has the potential to tarnish the employer’s image or reputation;
3. when the conduct took place and whether the conduct occurred near the employee’s workplace;
4. whether the conduct amounted to a breach of the employer’s policies, codes of conduct or the employment contract itself; and
5. whether the conduct would affect the employee’s performance.

This article provides information that is general in nature and not a substitute for legal advice. Please contact Rudstein Kron Lawyers if you wish to obtain legal advice for your personal situation.