Out of Hours Conduct of Employees

LG Leader April 2017

The classic case in this area is that of Rose v Telstra Corporation Limited (1998) AILR 45, in which Mr Rose was dismissed for being involved in a heated altercation with another Telstra employee, while off duty, but in a hotel room while on work travel and having received a travel allowance. The decision in this case showed that the out of hours conduct must have a relevant connection to the employment relationship in order to be a valid reason for dismissal.

A concept made even more difficult in this connected age of social media and social networking. Not only can bullying occur online, outside of the workplace and outside of work hours, but so can other conduct which may impact on the employment relationship.

In the case of O’Keefe v William Muirs Pty Ltd [2011] FWA 5311, Mr O’Keefe was dismissed for serious misconduct for posing threatening and derogatory comments on his Facebook page about his employer and other employees. Fair Work Australia held that although the posts were made outside of work hours, at home, on Mr O’Keefe’s personal computer, there was still a sufficient connection between the employee’s conduct and his employment.

Compare this with the almost identical case of Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444, where Fair Work Australia found that, although the derogatory comments made by Mr Stutsel on his Facebook page were inappropriate, there was not a valid reason for dismissal. The major distinction between the two cases is the presence (or absence in the later case) of appropriate policies in the workplace.

These cases highlight that councils should regularly review and update their IT and social media policies, and even more importantly, ensure that such policies are disseminated to all employees.

For Council employees, as well as being aware of their conduct on social media platforms, they need to consider their conduct at out of hours events or events outside the workplace such as conferences or training days. Council employees should also be aware that such conduct can breach the Code of Conduct for Council Employees.

If you have any questions about policies, or conduct of employees outside the primary workplace, please contact us.