Can Conduct Outside of Work Lead to Dismissal?

Poor conduct by employees can often lead to their dismissal. While this is usually a reasonable consequence when the behaviour happens in the workplace, it may be less straightforward when the conduct is occurring or has occurred outside of the workplace. So, when can conduct outside of work lead to dismissal and how should an employer know if they are within their rights to dismiss an employee for their actions outside of the employee’s working hours?

According to the Fair Work Commission, “it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees” and in order for an employer to dismiss an employee for their conduct, it must be able to form a relevant connection between the conduct and the employment.

What type of conduct can lead to dismissal?

In recent times, one of the most common ways employees’ working lives are blurred with their private lives is through the use of social media. Often, personal social media accounts can easily lead straight to a person’s employer (even if they are not purposely linked) and this can make it difficult to ascertain where the duties, obligations and rights of both the employer and the employee begin and where they end. This is why, when an employee is dismissed because of conduct outside of work, the employer must have a valid reason to dismiss the employee relating to their alleged conduct.

Typically speaking, an employer may dismiss an employee for conduct outside of work if that conduct:

• is likely to seriously tarnish the relationship between the employee and employer;
• damages the employer’s business interests; and/or
• does not align with the employee’s duty as an employee.

An employer may not simply assert that any employee conduct which occurred out of hours bore the potential to damage its reputation or the employee’s capacity to perform their duties. The employer must also have evidence that the conduct damaged the relationship in some way. For example, the employee may have been wearing their company uniform or otherwise representing themselves as an employee of the organisation when the conduct occurred.

In the same vein, if an employee commits a criminal offence outside of work, this does not automatically warrant a dismissal. If the offence leads to the employee being unable to perform their duties (for example, because they serve a term of imprisonment or are suspended from driving and driving is a crucial element of their work) then dismissal may be warranted.

Can an employee be dismissed over their conduct on social media?

In recent years, the prevalence of social media and its use for online bullying, harassment and often, general unsavoury comments has led to employers introducing social media usage policies and the like to help curb misuse of social media by employees. Although this area of the law is not simple, case law has proven that employers which dismiss their employees for posts of a threatening nature or are disparaging of their employer may be justified in doing so. Where a post is inconsistent with the employer’s policies an employee may also be dismissed. For example, if an employee uses social media to threaten or otherwise harass a co-worker – which is against the law – an employee may have grounds to dismiss the employee even if the conduct took place after hours or outside of the workplace.

If you need advice about employee behaviour and whether it constitutes dismissal, our team can help. Get in touch with us today.