Can I be fired for conduct outside of work hours?

With the proliferation of social media use and the ever-blurring lines between your work and private life, it is now significantly harder to recognise which aspects of your life your employer has control over. In short, it has been consistently recognised that out of hours conduct may constitute valid reason for dismissal. However, the circumstances are limited.

What is the test?

 Following from the seminal decision in Rose v Telstra, we know that there must be a relevant connection between the out of hours conduct in question and the employment relationship. In summary, it must be shown that:

1. the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employer and the employee;
2. the conduct damages the employer’s interests; or
3. the conduct is incompatible with the employee’s duty as an employee.

Essentially, the conduct must have been of ‘such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee’. However, it should be noted that even if you have engaged in criminal conduct, it does not follow that the criminal offence alone should warrant a dismissal. In this case, the criminal activity must still be ‘sufficiently connected’ to your employment.

What sort of conduct would fall within this scope?

 A bar fight?

Fighting with another employee out of hours did not meet the above test in Rose. Factors influencing the decision included:

• that the incident took place in a private hotel room, as opposed to a public place
• that publicity of the incident was ‘scant’, so it did not damage the employer’s interests
• that the employee had generally been a good employee who had been ‘foolish and [made] an error of judgment’, thus not causing serious damage to his relationship with his employer
• the employees were not ‘on call’
• the employees were not wearing uniforms

Social media content?

An employee who sent explicit private messages on Facebook Messenger to 20 of his Facebook friends (19 of them being colleagues) was validly dismissed, for the following reasons:

• several employees had complained about the message
• the employee had been dishonest and uncooperative
• the nexus was established as those who had received the message would not have been Facebook friends with the employee were it not for his employment

Sexual harassment?

In Applicant v Employer, an employee attending training at a hotel groped a waitress at that hotel after work hours. His dismissal was valid for the following reasons:

• his stay at the hotel was organised and paid for by the employer
• he was only in the bar as a result of his employment relationship with the company
• he was drinking with work colleagues, and was to be working the following day
• he had previously been given a warning for his misconduct
• the incident had the potential to damage the employer’s reputation
• the fact that he wasn’t in his normal work location did not discharge him from the responsibility to behave in a way consistent with the conditions of his employment

The case examples above demonstrate both the importance of establishing a “sufficient connection”, as well as the influence contextual circumstances can have upon the decision of a case.