Can Out-of-Hours Conduct lead to Dismissal?

KEY TAKE-OUTS

• Some out-of-office conduct may constitute a valid reason for dismissal.
• The lines between work and private life can often merge which makes it difficult to identify where rights, duties and obligations begin and end.
• Social media blurs the line further as personal posts may be seen as reflecting a business
• It is important for employers to remain diligent when taking action regarding employee termination

What type of behaviour can constitute grounds for employment termination? 

When employees are doing the wrong thing, it is common for employers to follow a disciplinary process which can often lead to dismissal. Generally, it is easier to recognise and deal with inappropriate behaviour when the conduct occurs during the workday. 

The lines between work and private life can often merge, this can make it difficult for both employees and employers to identify where their rights, duties and obligations begin and end. Once you walk out the door, it is often regarded as being “off the clock” and what you attend to is your own business. With the ever-changing employment law landscape, these lines are further distorted. 

When can employees be terminated for off-duty behaviour?

In limited circumstances, out-of-hours conduct may be valid grounds for employee dismissal. The Fair Work Commission advises that it is important for employers to make the relevant connection between the conduct and the employment relationship prior to attending to dismissal. 

An employer may dismiss an employee for out-of-hours conduct if:

• The conduct is likely to cause serious damage to the relationship between the employee and the employer
• The conduct damages the employer’s interests
• The conduct impairs the employee’s duty as an employee. 

What is Employee Termination?

Employee Termination refers to the dismissal of an employee whose actions breach a company’s policy or the Fair Work Act 2009 (“FW Act”). The FW Act defines the conduct which justifies summary termination as follows:

• Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment
• Conduct that causes serious and imminent risk to:
  • The health or safety of a person; or
  • The reputation, viability, or profitability of the employer’s business
• Theft, fraud, assault, sexual harassment, an employee being intoxicated at work and the employee refusing to carry out a lawful and reasonable instruction

Can your employment be terminated because of social media posts?

Social media is used regularly to post thoughts, images and discussions about anything imaginable. Sometimes employees may post something which does not align with a business’ morals. When posts do not align with a company’s message, the employer may proceed with disciplinary measures and even dismissal.

In 2021, The Fair Work Commission (“FWC”) heard an unfair dismissal application between Mr Conrad John Corry (“Corry”) and the Australian Council of Trade Unions (“ACTU”). Throughout his employment, Corry had made offensive and discriminatory posts on his personal Facebook account as well as on ACTU’s internal messaging service. The FWC ruled that the posts were likely to cause serious damage to the relationship between ACTU and Corry. The posts also caused a serious and imminent risk to the reputation of ACTU and Corry’s conduct was incompatible with his duties to his employer. The conduct had ultimately breached ACTU’s policies and constituted serious misconduct.

What can employers do to protect their business and staff?

As an employer, it is crucial to make sure your employees understand their obligations when it comes to their employment. Good business practice is to frequently review and update employment agreements and policies to minimise the risk of harm to the business and to your employees.

Dismissal of any kind is a difficult issue for any business and serious misconduct based on off-duty behaviour is especially complex. It is important to seek legal advice before taking such action.

ABOUT KARENA NICHOLLS:

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach that has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.