Disciplining an employee for ‘out of hours’ conduct – what you need to know

This article was contributed by Luis Izzo, Director, Workplace Relations, at Australian Business Lawyers & Advisors

Can HR professionals discipline an employee for sexually harassing a co-worker outside of office hours, even if they didn’t realise the co-worker was their colleague?

In most cases, the answer to this question will be yes. However, as is often the case with Australia’s employment laws, the devil is always in the detail.

There are a variety of considerations that employers need to be conscious of when considering disciplining employees for any type of ‘out of hours’ conduct.

In the pre-eminent authority on the issue, Telstra v Rose [1998] AIRC 1592, the Australian Industrial Relations Commission held that an employer can only discipline an employee for conduct engaged in outside of office hours where the conduct was so serious that it had either adversely affected:

(a)  the relationship between the employer and employee;
(b)  the employee's performance of work or ability to perform work; or
(c)  the interests of the employer more generally. 

Essentially, there must be a “clear connection” between the employee's out of hours conduct and their employment.

In the present example, where an employee engages in sexually harassing conduct towards a co-worker, there are a variety of ramifications that might affect the workplace. For instance:

1. the employee’s ability to work harmoniously with the co-worker in future might be compromised;
2. the co-worker’s ability to be comfortable at work and to feel supported and safe in his/her working environment might be compromised; or
3. in more serious cases, the employer’s reputation could be exposed to adverse publicity.

So, provided that there are clear adverse ramifications to the workplace associated with the employee’s conduct outside of work, the employer will be able to discipline the employee - regardless of whether the employee knew the co-worker was a colleague or not.

However, where the conduct is relatively innocuous or not so serious so as to affect the workplace, employers need to be careful - particularly when considering dismissing an employee for misconduct outside the workplace.

This was highlighted in the 2015 decision of the Fair Work Commission in Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156. In this case, Vice President Hatcher found that numerous inappropriate incidents following a Christmas party did not warrant termination of employment because of their limited impact on the workplace. The incidents considered were quite serious, with the relevant employee being found to have: