Off-site and out of hours conduct: none of the employer’s business?

Generally, an employer has no right to control or regulate an employee’s out of hours conduct. However, in the modern employment relationship where employees work from home, are required to travel abroad and frequently engage in social media with their colleagues and clients, the line between work and play can often be blurred. So when can an employer lawfully intervene when things go wrong in these circumstances?

In the seminal case of Rose v Telstra (1998) AIRC 1592, it was held that there must be a sufficient nexus between an employee’s out of hours or off-site conduct and the employment relationship. That nexus may be established where the employee’s conduct, if viewed objectively, is likely to cause serious damage to the employment relationship, would damage the employer’s interests, or is incompatible with the employee’s duty as an employee.

In Applicant v Employer [2015] FWC 506, an employee was dismissed after ‘groping the backside’ of a hotel bar waitress in a hotel he was staying at for work training purposes. At the time of the incident the employee had completed his training activities for the day and was ‘kicking back’ in the hotel bar with some of his colleagues who were also staying at the hotel.

The Fair Work Commission (FWC) found that the employee had not been unfairly dismissed and that the relevant nexus between the offsite/out of hours conduct and the employment relationship was established. The FWC highlighted the fact that the only reason the employee was at the hotel was because of his employment, and the employer had paid for both his food and accommodation during this time (as required by an enterprise agreement). It was also significant that the employer had an established relationship with the hotel, as it frequently used the hotel to accommodate other employees, and hotel employees knew that the employer’s workers regularly stayed there. Consequently, the employee’s conduct had the potential to damage the employer’s interests and reputation.

The FWC also found that the employee’s conduct was incompatible with his role as an employee given the serious nature of that conduct and the fact that the employee had previously been warned about his conduct after engaging in misconduct at another hotel paid for by the employer.

Whilst the case law demonstrates that the relevant nexus between offsite/out of hours conduct and the employment relationship may be established in some circumstances, to avoid uncertainty it would be preferable for employers to be proactive and develop clear policies and conduct training as to appropriate standards of conduct in off-site/out of hours circumstances that may be connected with and/or could have an adverse effect on the workplace (e.g. social media policies, travel policies, bullying, discrimination and harassment policies etc).