Out-of-Hours Conduct: When Can it Lead to Dismissal?

The line between conduct within and outside the workplace can often be blurry. While an employee’s actions in any part of their life can impact their employer’s reputation, determining when out-of-hours conduct becomes a workplace issue is complex. We have learnt from various cases before the courts and tribunals that a valid reason for dismissal, due to misconduct exists if there’s a connection between the misconduct and the employment. This connection arises when the misconduct is so severe that it indicates the employment contract cannot continue.

Justifying Dismissal for Out-of-Hours Conduct

For an employer to justify dismissal based on out-of-hours conduct, the conduct must adversely impact one or more of the following:

1. the employer-employee relationship
2. the employee’s work performance
3. the employer’s interests

A few examples from cases before the Fair Work Commission where an employee’s conduct did adversely affect one of the above and there was a sufficient connection between the employee’s behaviour and their employment include –

• Sending offensive materials to colleagues, violating company policies.
• Bullying or sexually harassing a colleague, including at work functions or on social media.
• Social media activity that damages the employment relationship or employer’s interests, like disclosing confidential information.
• Breaching employment contract terms, such as failing to provide honest and faithful service.
• Misconduct occurring in employer-provided facilities or accommodations.
• Engaging in criminal conduct resulting in imprisonment, preventing work attendance.
• Conduct leading to sanctions that prevent fulfilling job duties, like losing a required license.
• Behaviour inconsistent with job duties or obligations.

No Connection Between Work and Behaviour

In Bell & Mackay v Boom Logistics, an employee’s out-of-hours misconduct (taking and cooking food in a co-worker’s house without permission) did not meet the criteria for dismissal as it did not seriously damage any of the three factors above. Conversely, a senior correctional officer’s dismissal for reasons of domestic assault was deemed harsh and unreasonable since it did not affect his work performance or the public service’s reputation.

Proving the Connection is not Always Clear Cut

In Sydney Trains v Andrew Bobrenitsky, a train driver was dismissed after a high-range drink driving conviction. Initially, the dismissal was deemed unfair as a driver’s license was not required for his role. However, upon appeal, the decision was reversed. The Full Bench of the Fair Work Commission ruled that his conduct, which showed a disregard for alcohol regulations, was connected to his employment as it affected his ability to perform his duties safely.

Key Takeaways

Employers do not have absolute control over employees’ conduct outside work, but certain behaviours can impact employment. Before dismissing an employee for out-of-hours conduct, employers should consider whether the conduct:

• makes the employee unable to perform their duties effectively
• adversely affects the workplace or the employer’s interests
• irreparably damages the employer-employee relationship.

Finally, employers should also consider whether dismissal is the most appropriate response.

To avoid being held vicariously liable for any employee behaviour in or outside of the workplace, employers must demonstrate that they took reasonable steps to prevent the behaviour, particularly in cases of discrimination or harassment and responded appropriately to complaints. Policies should clearly state that such behaviour is against the law and outline disciplinary actions, including for conduct at work-related events or activities.

Need more?

Members are reminded if they find themselves in a situation where they are questioning an employee’s out of hours conduct, seek advice as soon as possible before you take action. The Workplace Relations and Legal Team are there to offer guidance and support to minimise the risk to your business. Reach out to the team on 02 6175 5900.