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Could your out-of-hours conduct be affecting your job security?

Employees are encouraged to be mindful of their out-of-work conduct. Social networking on Face book and Twitter, as well as getting into a fight with a co-worker outside of work hours can result in termination of your employment. While employers only have limited scope to regulate an employee's out-of-hours conduct,1 the law permits the termination of an employee's employment if there is a "sufficient temporal and physical connection between the incident and the employment relationship".2 If this necessary connection between the employee's alleged misconduct and the employment relationship exists, it will be reasonable and appropriate for the employer to investigate the conduct and, if warranted, terminate the employee's employment on that basis.3

Having investigated the offending conduct the employer may, if sufficient circumstances exist, be entitled to dismiss the employee if the employee's conduct is objectively:

  1. likely to cause serious damage to the relationship between the employer and employee; or
  2. likely to cause damage to the employer's interests; or
  3. incompatible with the employee's duties as an employee; that is, the conduct is "of such gravity or importance as to indicate a rejection or repudiation of the employment contract
    by the employee". 4

In deciding whether these standards have been met, the courts will have regard to the following factors:

  1. is there strong enough evidence of the alleged misconduct – the employer is required to prove misconduct on the balance of probabilities;
  2. was the employee in uniform at the time of the out-of-hours conduct;
  3. did the conduct occur in close proximity to the workplace, both physically and temporally;
  4. did the conduct occur at a venue owned by or paid for by the employer;
  5. did the conduct constitute a breach of the employer's policy on standards of conduct, which were made known to the employee prior to the conduct;
  6. had the employee received previous warnings; and
  7. was the employee afforded procedural fairness.

Outcomes at a glance

  • Mr Paul Warner Dobson v Qantas Airways Ltd 5– Dobson was dismissed by Qantas for hitting a co-worker in a parking lot immediately after work. The employees were both in uniform and although Qantas did not own the car-park, it paid for its employees to park there. These circumstances were sufficient to create a nexus between the employee's conduct and the employer. As such, the dismissal was found to be lawful.
  • Anthony Farquharson v Qantas Airways Ltd (2006) – Farquharson punched a co-worker at a New Year's Eve party. The co-worker was hospitalised for several weeks and Farquharson was dismissed. There was a connection between Farquharson's conduct and the employment relationship as Qantas had secured the venue for the party and made per-head contributions towards party drinks. Farquharson's out-of-hours conduct was also said to adversely affect Qantas in that it damaged Qantas' relationship with the party venue-owner and Qantas was required to re-work the flight crew roster as a result of its employee being hospitalised.
  • Gustav Klepacz v Reflections Group Pty Ltd – Klepacz was a cleaner in a shopping centre. While on personal leave, Klepacz attended the shopping centre and verbally abused another employee who was on duty in the food court. Klepacz was dismissed. There was a physical connection as the incident occurred in Klepecz's place of work while wearing a jacket which clearly displayed the shopping centre's logo. The incident adversely affected the shopping centre as the incident took place in front of several customers.
  • Damien O'Keefe v William Muirs Pty Ltd T/A Troy Williams The Good Guys – O'Keefe used his Facebook page to post offensive about his employer and his salary. O'Keefe also made threatening remarks in relation to unnamed co-workers. This conduct was said to contravene the Employee Handbook, with which O'Keefe had been provided. The Good Guys were held to have valid grounds for dismissing O'Keefe, despite the fact that the Facebook posting took place on a home computer, with no physical or temporal connection to the workplace.

1 Rose v Telstra Corporation Limited
2 Mr Paul Warner Dobson v Qantas Airways Limited (U2010/7498) at [121)
3 Mr Paul Warner Dobson v Qantas Airways Limited (U2010/7498) at [122)
4 Rose v Telstra Corporation Limited
5 (U2010/7498)