Can Out Of Hours Conduct Lead to Dismissal?

The behavioural conduct of an employee outside of the regular hours stipulated in an employment contract may result in consequences that could lead to early termination. Social arrangements that an employee participates in before or after their regular hours may negatively impact their employer, organisational reputation, potential profits, and future business.

Employee actions that result in deteriorating the social image of the organisation may prompt employers to take disciplinary action against the individual concerned. However, the line between out of hours conduct that may or may not affect an employee’s employment is often blurred.

In an individual’s employment life, there may only be a handful of public actions that warrant early termination. However, the circumstances that surround the few public taboos do not have a fixed criterion. Society as we know it evolves and our social constraints adapt to what we consider ‘normal,’ but at what point does such behaviour become a workplace issue? When can it be deemed a solid ground for dismissal?

If the conduct is likely to strain the employer-employee relationship or cause serious damage to the employer’s interests, early termination may be necessary. Further, the organisation’s public image may be at risk as they are perceived as being ‘protective’ of the employee in question and this may also be grounds for disciplinary measures.

Take the case of the Sydney International Container Terminals Pty Ltd; an employee was terminated in August 2017 after sending a pornographic video via Facebook messenger to 19 of his colleagues. Although the incident happened outside the workplace, it still affected the existing working relationship between the employee and his colleagues. The Fair Work Commission (FWC) rejected the claim of contractual violation and early termination. This was after the employee, Mr. Luke Colwell, had applied to challenge his employer’s decision.

Mr. Colwell argued communication between friends couldn’t be regulated by the employer and existing policies. However, FWC Commissioner Donna McKenna found that their acquaintance and subsequent “Facebook friendship” stemmed from their employment. This was argued as the “relevant nexus” that connected the out-of-work incident to the workplace.

The employer, Hutchison Ports Holding (HPH), stated that they had a duty of care for employees and a commitment to provide a safe and healthy environment. The organisation publicly stated that Mr. Colwell’s behaviour was grossly incompatible with his duty as an employee and cited his breach of their workplace bullying and harassment policy.

Considering the employer’s workplace policies and culture, Commissioner McKenna upheld the decision to dismiss Mr. Colwell, noting that disseminating the video was “the antithesis of a female-friendly environment.” In the commissioner’s ruling, the organisation did not impeach the Unfair Dismissal Acts based on Mr. Colwell’s breach of company policy in the space of social media. To support the case, the company has an induction process to ensure all employees understand their policies and procedures, including the bullying and harassment policy.

On February 9^th, 2018, the FWC decision has set precedence for future hearings regarding poor conduct after contractual employment hours. This case has reinforced the importance of having clear policies on employee harrassment, which includes all forms of social media and future technology.

As a good business practice, It is recommended for organisations to frequently review, regulate and update their contracts and policies. Implementing strong policies combined with a dynamic induction process will help minimise the risk of harm to an organisation and its employees.

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