Out-of-hours conduct could be work-related

Out-of-hours conduct could be work-related

Employees may sometimes engage in conduct outside their normal working hours or workplace that may have implications for their employment. For example, an employee may be involved in a criminal offence, or an inappropriate social media post or other action which affects their ability to perform their duties. In such circumstances employers may wonder whether they can take disciplinary action against the employee, or even dismiss them, for their out-of-hours conduct.

When is out-of-hours conduct work-related?

There is no clear-cut answer to this question, as the approach and criteria to determine whether an action is work-related can vary. However, some common factors that may be considered include:

• The nature and extent of the connection between the conduct and employment. For example, whether the conduct occurred during a work-related activity, such as a business trip, a work social event like the staff Christmas party, or whether the conduct involved the use of work resources, such as a work phone, a work email, or a work vehicle.
• The impact or potential impact of the conduct on the employer’s business interests, reputation or operations. For example, whether the conduct damaged the employer’s image, breached the employer’s policies or codes of conduct, or affected the employer’s relationships with customers or suppliers.
• The impact or potential impact of the conduct on the employee’s duties, performance, or fitness for work. For example, whether the conduct impaired the employee’s ability to carry out their role, created a conflict of interest, or compromised the employee’s trustworthiness, integrity or professionalism.

When can employers discipline or dismiss employees for out-of-hours conduct?

Unfair dismissal can arise in out-of-hours conduct situations. Under the Fair Work Act 2009 (Cth) (FW Act), an employer must have a valid reason for dismissing an employee, and the dismissal must not be harsh, unjust, or unreasonable. A valid reason may be based on the employee’s conduct, capacity, or performance.

In unfair dismissal cases involving out-of-hours conduct, an employer cannot merely argue that the employee’s conduct has in some way affected the employer’s reputation or compromised the employee’s capacity to perform their duties – there must be evidence upon which a valid reason for dismissal can be based. The employer must also consider the nature and seriousness of the conduct, the employee’s length of service, the employee’s history of disciplinary issues and any other mitigating circumstances before deciding to dismiss the employee.

Recent case: Inappropriate Facebook posts among colleagues were not work-related

Sharing offensive material with colleagues on social media was “abject stupidity”, a Fair Work Commission (FWC) full bench has found, but the conduct was not sufficiently connected to work to justify dismissal.

A firefighter’s employment was terminated in September 2022 due to sharing offensive content in a Facebook group. The Commissioner held that the employee’s dismissal was unjust and unreasonable and ordered his reinstatement, highlighting that the employee had been treated differently to a colleague who had posted “equally offensive” material, he had not been trained in the employer’s social media policy, and most of his posts were made outside of work hours.

The employer appealed, arguing that the Commissioner failed to consider the “entire factual matrix” when concluding that the employee’s conduct was not work-related. Specifically, the employer argued that the Commissioner failed to take into account the following:

• most of the people in the Facebook group were current or former employees
• group members who were current employees looked at posts while they were on duty
• some of the posts were “pornographic and sexist” which was particularly relevant given firefighting could be seen as having a “blokey culture hostile to the recruitment of female firefighters” while it was actively trying to increase workplace diversity, and
• the employee, who was relatively senior among the Facebook group members, failed to “clearly and unequivocally admonish” others for their own sexist and disparaging posts.

The employer was granted permission to appeal, noting that the case raised important issues about how the FWC determined whether out-of-hours social media conduct “consensually engaged in” by colleagues was sufficiently connected to employment, and in what circumstances it constituted a valid reason for dismissal.

The Full Bench said the “critical distinction between cases where a relevant connection is established is that something beyond mere expectation is required”.

The connection must relate to an inherent requirement of the employee’s position or to an attribute the employee must have in order to perform their duties, and the out-of-hours conduct must involve “incompatibility, conflict or impediment to the employment relationship” or to be “destructive of confidence”.

The Full Bench found that the Commissioner did properly consider the matters identified by the employer and rightly concluded that the employee’s conduct was not sufficiently connected to work to establish a valid reason for dismissal stating, “the employee’s conduct …… is not connected to his employment in the requisite sense so that other posts made by him constituted a valid reason for his dismissal” and rejected the employer’s appeal.

Ventia Australia Pty Ltd v Pelly [2023] FWCFB 201 (1 November 2023)

Key lesson for employers and employees

Out-of-hours conduct and whether such conduct is work-related is a complex issue which requires a careful and contextual consideration of the facts and circumstances of each case. Employers and employees should be aware of the potential legal implications and consequences of their conduct outside of the workplace or work hours and seek advice if in doubt.