Dismissals for out of hours conduct. Can employers discipline employees for their behaviour outside of work?

In this age of social media and global interconnectivity, employees are taking their work with them everywhere they go. No longer are they confined to the usual parameters of working 9 to 5 at an office or on site, as our professional and personal lives are more intertwined than ever before.

So what can an employer do if an employee behaves inappropriately out of work? Can employees be disciplined for their conduct outside of work hours?

The courts have consistently ruled that employees can be dismissed for misconduct committed outside of regular work hours and away from the usual worksite, but only in specific circumstances.

The circumstances where an employee can be lawfully dismissed are:

  • Where the employee’s conduct, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee.
  • The employee’s conduct damages the employer’s interests.
  • The employee’s conduct is incompatible with his or her duties as an employee.

The employee’s conduct has to be of such gravity or importance that it indicates a rejection of the employment relationship and the employee’s contract.

In a recent unfair dismissal case in the Fair Work Commission, an employee made several controversial and highly politicised posts on his private Facebook account. The posts covered various topics concerning vaccines and COVID-19 lockdowns, as well as encouraging homophobia, racism and police violence. The Facebook account, which was set to public, was eventually found by his employer.

The employee was subsequently dismissed for serious misconduct. His employer, which was a trade union body with public positions on a variety of social issues, deemed the Facebook posts to be incompatible with the values and policies of the organisation, as well as posing a risk to its reputation.

The employee argued that the posts were his sincere political and religious beliefs. He did not believe they were offensive or that they unreasonably offended, humiliated, belittled, undermined, scared, excluded or embarrassed anyone.

The Commission determined that it was irrelevant whether posts were objectively offensive. Rather, it ruled that the key issue was whether the posts were in breach of the employee’s obligations under his contract of employment.

The Commission ruled that several of the Facebook posts were clearly inconsistent with the expectations and public position of the employer on key political and social issues, and as such the employee was validly dismissed for serious misconduct. Even though the posts were made out of hours, on a personal Facebook account and there was no express affiliation between the posts and the employer, the Commission ruled that the posts nevertheless breached the employer’s Code of Conduct and Harassment, Discrimination and Bullying Policy. It also took the view that the employee had failed to conduct himself in public in a manner which did not reflect adversely on his employer.

The Commission further held that just because the employee held strong personal views, this did not give him an unqualified right to publicly share those views in circumstances where they were against the interests and values of his employer.

The Commission was therefore satisfied the employee was not unfairly dismissed.

In another similar unfair dismissal case, an employee made disparaging comments on the Facebook page of another company he had dealings with during the course of his employment, as well as sexually inappropriate comments about a new employee.

His employer considered the comments to be in breach of its Employee Handbook and Code of Conduct, as they caused a serious risk to the Company’s reputation.

The employee argued that he had a right to express his views on the Internet, as long as it did not reflect poorly on the Company. He believed that as he had represented himself as working for a fictional employer on his Facebook account, there was no way that his conduct could damage the reputation of his actual employer.

The Commission disagreed, and ruled that the employee’s conduct seriously damaged the relationship between the employer and employee, damaged the employer’s interests, potentially damaged the relationship between the employee and other employees and was incompatible with the employee’s duties.

The Commission also highlighted that even in the absence of a Code of Conduct or policy specifically referring to conduct on social media or out of hours conduct, an employee can still be dismissed for actions which are obviously likely to impact the employer’s relationship with another company and its wider reputation.

While employers cannot completely control what employees do in their own time, they certainly have a right to protect their business interests and reputation. Employees should be made aware that they are expected, at all times and on all platforms, to not do anything that could damage the interests or reputation of their employer.

Employers should ensure that they have in place a comprehensive suite of policies which clearly inform staff about expectations concerning their behaviour outside of work and in the public sphere, and the consequences of non-compliance.

As with any proposed dismissal, employers should also take care to ensure that in any disciplinary process regarding out of hours conduct, they follow proper procedure to minimise any risk of an unfair dismissal or general protections claim.

Source: HWL Ebsworth

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