Does the employees private life matter?
It is not uncommon for the Fair Work Commission to be required to rule upon whether out of hours conduct by an employee may constitute a valid reason for dismissal. What an employee does in their private life is their business. Unless that conduct is likely to cause serious damage to the relationship between the employer and employee. Or damages the employer’s interests or is incompatible with the employee’s duty as an employee. But is it really?, what does the FWC say to: Does the employees private life matter?. What are your employment rights? Read on.
Leading unfair dismissal case of Rose v Telstra
The leading case in regards to an employee’s out-of-hours conduct is the unfair dismissal case of Rose v Telstra.[1] In this case, Vice President Ross held that an employee’s behaviour outside of working hours will only have an impact on their employment. To the extent that it can be said to breach an express or implied term of his or her contract of employment.[2] An employee’s implied duty of fidelity and good faith is particularly relevant here.[3] In Blyth Chemicals v Bushnells,[4] their Honours Dixon and McTiernan JJ said:
“Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty. Or involves an opposition, or conflict between his interest and his duty to his employer. Or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal … But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises”.[5]
In the same case their Honours Starke and Evatt JJ note:
“The mere apprehension that an employee will act in a manner incompatible with the due and faithful performance of his duty affords no ground for dismissing him. He must be guilty of some conduct in itself incompatible with his duty and the confidential relation between himself and his employer”.[6]
Examples of where the requirements outlined above may be met:
- a criminal conviction for drink-driving or fraud
- having an affair with your bosses’ wife
- a lecturer having an affair with a student
- any sexual misconduct outside of work
- extreme adverse commentary posted on social media.
Criminal convictions and the workplace
The consequent limitations on an employer’s right to discipline an employee in respect of out of hours misconduct is most clearly illustrated by the High Court’s decision in Commissioner for Railways (NSW) v O’Donnell.[7] In that case the Court held that the fact that an employee had been arrested and charged with an offence. This did not of itself constitute misconduct warranting termination of employment.
Nor is the conviction of a criminal offence, of itself, sufficient to warrant termination and the misconduct in question must have a relevant connection to the employment. In HEF of Australia v Western Hospital,[8] Lawrence DP observed:
“The conviction of an individual for a criminal offence does not necessarily have any effect upon that person’s employment. The question of the relevance of a conviction or an employee’s alleged misbehaviour to the employee’s work should be considered in terms of whether or not the employee has breached an express or implied term of his or her contract of employment. Whether events occurring outside the actual performance of work will be relevant to the employment relationship will vary from case to case. For example, an accountant who has committed an act of dishonesty (for which he may have been charged and convicted) in the course of some activity outside his employment might be said to have breached a term of his contract of employment”.[9]
However if attendance at work for a significant period is precluded because an employee has been convicted of a serious offence and imprisoned. Then the contract of employment may be brought to an end by the operation of law due to frustration.[10]
Depending on the circumstances a conviction for a criminal offence
Depending on the circumstances a conviction for a criminal offence arising from out of work activities may lead to termination. In Hussein v Westpac Banking Corporation,[11]an employee was convicted of credit card fraud in relation to activities outside his work. He was employed at Westpac as a migrant liaison officer, in particular, giving advice to members of the Turkish community. Staindl JR expressed the following view:
“… a conviction on a drink-driving charge which occurred outside work hours would not be relevant to the employment of many people. However, it would be of critical relevance to a truck driver or taxi driver. It seems to me that an appropriate test is whether or not the conduct has a relevant connection to the employment.”[12]
Ultimately, the court held that there was a sufficient connection between his work with Westpac and the conviction for credit card fraud on another bank. He was in a position of responsibility, honesty and trust. In those circumstances, his conduct was sufficient to justify the dismissal.
Having an affair with your bosses’ wife
In Wall v Westcott,[13] Watson J held that an employee having an affair with his employer’s wife as revenge or as an affront to the employer in a small community constituted misconduct justifying dismissal. His Honour said:
“… I would have little hesitation on the evidence relevant to this issue in deciding that, with the admitted intention of the respondent to seek revenge in the way he did, the misconduct was both serious and willful. This is not a moral view. It was a serious and very much intended affront to an employer in a relatively small community”.
It is important to recognize that the behaviour of the applicant in that case constituted serious and willful misconduct. Not because the tribunal felt that it was immoral and warranted a penalty, but because it was `a serious and very much intended affront to an employer in a relatively small community’. The employee’s conduct was clearly likely to cause serious damage to the relationship between the employer and employee.
Sexual Conduct Outside of Work
In McManus v Scott-Charlton,[17] Finn J concluded that it was lawful for an employer to give an employee a direction to prevent the repetition of privately engaged-in sexual harassment of a co-employee where:
“(i) that harassment can reasonably be said to be a consequence of the relationship of the parties as co-employees (ie it is employment related); and (ii) the harassment has had and continues to have substantial and adverse effects on workplace relations, workplace performance and/or the “efficient equitable and proper conduct” (cf PS Act, s6) of the employer’s business because of the proximity of the harasser and the harassed person in the workplace.”[18]
It is important to recognise that the lawfulness of the direction given by the employer was dependent on the fact that the employee’s out of work conduct had a demonstrated, substantial and adverse effect on the employer’s business.[19]
Police officer found loitering in the grounds of a girls school while off duty
In Henry v Ryan,[20] a police officer found loitering in the grounds of a girls school while off duty and wearing only his underpants was guilty of misconduct and terminated. In the course of his judgment, Burbury CJ said:
“Many of the powers of a police officer are exercised by him by virtue of the independent public office he holds and cannot be exercised on the responsibility of any person but himself. His duties are of a public nature and over a wide range of matters affecting the public he exercises original and not delegated authority … Discreditable conduct in his private life may therefore clearly affect his status and authority as a police officer in the discharge of his public duties and in his relations with the public. Misconduct in his private life by a person discharging public or professional duties may be destructive of his authority and influence and thus unfit him to continue in his office or profession.“[21]
Further this context it is important to note that Courts have often observed that members of police forces are engaged in a very distinctive form of public service.[22] The discipline expected of, and extracted from, police officers reflects the particular public character and importance of policing and police duties.[23]
Does the employees private life matter? Affairs and universities
In Orr v The University of Tasmania,[24] the Court held that the respondent was entitled to terminate the employment of a professor who had an affair with one of his students on the basis that his conduct had rendered him unfit to perform his duties. The fact that Professor Orr was engaging in a sexual relationship with one of his students. This made it impossible for him to dispassionately carry out his duties of examining and presenting candidates for their degrees.
Many employees have active social media profiles, commentary about everything and anything. But when does it cross the line?, and involves your employer. Can you go out there into the social media world and post sexist comments? Derogatory comments towards women and gays? Say the holocausts doesn’t exist?. Or can it be limited to anti vaxxers, flat earthers and like conspiracies’, and your footy team. Its complicated when we are in a democratic society.
May damage the reputation of the employer
Anything that may damage the reputation of the employer, the employer is entitled to take action. The line gets more blurred when it really is about an opinion that withdraw their claim to a seat based on what’s they have posted 10 years ago. Because the employer strongly disagrees with. My view is if you haven’t got something nice to say about someone, then don’t say it. But if you have to don’t put it in writing. However this approach defeats what social media is about. That is the ability to tell the world, and hopefully everybody reads it.
As this article is written its the run up to the federal election. I’ve already read about several candidates having to with draw their claim to a seat based on what’s they have posted 10 years ago. You cannot just think your in your own media bubble. Yes we are in a democracy, have your say, but you have to think it through. Is it worth your job, the decision is yours.
Key Takeaways to “does the employees private life matter?”
From these examples, it is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct.[25] But such circumstances are limited to the following:
- the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
- the conduct damages the employer’s interests; or
- the conduct is incompatible with the employee’s duty as an employee.
I hope the article “does the employees private life matter?’ was informative for you. As employees work more from home, different time zones, social media expands and employees are expected to be available literally 24/7. Certainly the lines are blurred. Workplaces are still the No 1 place that people meet each other and form relationships. We are A Whole New Approach P/L. We are not lawyers but the nations leading workplace advisors, commentary, research. Any matters involved in the Fair work Australia regimen, including abandonment of employment, casual employment, and dismissals, probation period issues, workers rights.
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Citation
[1] Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross VP, 4 December 1998)
[2] Ibid.
[3] Ibid.
[4] (1933) 49 CLR 66.
[5] Ibid at 81-82.
[6] Ibid at 74.
[7] (1938) 60 CLR 681.
[8] (1991) 4 VIR 310.
[9] Ibid at 324.
[10] F.C. Shepherd & Co Ltd v Jerrom [1986] ICR 802.
[11] (1995) 59 IR 103.
[12] Ibid at 107.
[13] (1982) 1 IR 252.
[17] (1996) 140 ALR 625
[18] Ibid at 636.
[19] Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross VP, 4 December 1998).
[20] [1963] Tas SR 90.
[21] Ibid at 91.
[22] See Pense v Henry [1973] WAR 40 at 42; and Public Service Board v Morris (1985) 156 CLR 397 at 404 per Gibbs J and at 408-409 per Wilson and Dawson JJ.
[23] Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross VP, 4 December 1998).
[24] [1893] 2 QB 439.
[25] Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross VP, 4 December 1998).
