Can I be disciplined or dismissed by my employer because I breached lockdown rules in my own time?

With the various lockdown rules currently imposed on Victorians, there have also been a large number of violations and fines distributed for even the smallest breaches, such as not wearing a mask. Those found breaching the lockdown rules are already receiving hefty fines from the authorities, but can your employer also discipline or dismiss you for violations that took place in your own time? 

The short answer is, probably not. While there is plenty of law concerning when employers can discipline their employees for conduct that has occurred outside of work hours, it has been determined that only in exceptional circumstances can your employer extend supervision over your private activities. The seminal case of Rose v Telstra Corp Ltd [1998] AIRC 1592is leading in this area and stands for the principle that the conduct committed by the employee in their own time has to seriously damage the relationship with the employer, or damage their interests, or be incompatible with the employee’s duties. 

On the surface, breaching a lockdown rule alone will unlikely damage or have a connection to the employment relationship. It is also not enough for the employer to claim that their reputation or the employee’s ability to perform their duties has been compromised. Instead, material evidence is needed to prove this potential outcome. 

Therefore, the bar is set fairly high for an employee’s out of hours conduct to warrant disciplinary procedure. This is evident in the above-mentioned case where the employee Mr Rose was involved in a fight with another employee while off duty. It was held that Mr Rose’s conduct lacked the necessary connection to his employment because it occurred out of work hours, he was not wearing his work uniform, and was not ‘on-call’ at the relevant time. As such, if this violent dispute with another employee did not warrant any discipline, then it is unlikely a breach of lockdown rules on its own would suffice as a valid reason to dismiss an employee. 

If you find yourself in a position where you are at risk of being disciplined for conduct that occurred outside of your working hours you should not hesitate to seek legal advice immediately.