Absent specific circumstances being established, employers have no right to control or regulate their employees' conduct outside of work hours. However, if an employee's out of work conduct has a significant and adverse effect on their employment or the workplace, then an employer may be able to take disciplinary action, which may include termination of employment.
In this blog, we look at circumstances where an employee's 'out of hours conduct' can constitute grounds for disciplinary action, including termination of employment.
When can an employee be terminated due to out of work hours conduct?
For an employer to have a valid reason to terminate an employee, the out of hours conduct must be sufficiently connected to the employee's employment.
An employee may be validly terminated because of their out of hours conduct if:
- when viewed objectively, the conduct is likely to cause serious damage to their relationship with their employer;
- the conduct damages their employer's interests; or
- the conduct is incompatible with their duties as an employee.
An employer cannot simply assert that an employee's out of work conduct has, or potentially has, damaged the employment relationship or their reputation. The employer's subjective opinion is irrelevant. The employee's conduct has to be of such seriousness, objectively viewed, that it indicates they have rejected or are unable (or unwilling) to fulfil their obligations under their employment contract.
Some factors that are taken into consideration in determining whether an employee's out of hours conduct has a relevant connection with their employment include the following:
- The nature of the out of hours conduct and what it involved;
- Where and when the out of hours conduct occurred;
- The circumstances in which the out of hours conduct occurred;
- The nature of the employment;
- The role and duties of the employee;
- The principal purpose of the employee's employment;
- The nature of the employer's business;
- Express and implied terms of the contract of employment;
- The effect of the conduct on the employer's business; and
- The effect of the conduct on other employees of the employer.
Examples of out of work hours conduct that could lead to termination of employment
There have been a number of cases before the Courts and Tribunals where an employee has been held to have been validly terminated because of their out of hours conduct. A few examples where the Fair Work Commission has found a sufficient connection between an employee's conduct outside of work and their employment include:
- an employee sending offensive material, such as pornography, to work colleagues in breach of their employer's policies;
- an employee bullies or sexually harasses a work colleague, including at a work function or on social media;
- an employee's social media activity damages the employment relationship with their employer or the employer's interest, such as disclosing confidential information or damaging the employer's relationship with its clients or customers;
- an employee's conduct breaches a term of their employment contract (expressed or implied). This includes the implied duty of fidelity and good faith, which bestows an obligation of honest and faithful service to their employer (e.g. borrowing money from a client and not paying it back or obtaining secondary employment without the employer's knowledge or consent);
- an employee's conduct occurs in a facility (such as a lunch or break room) or accommodation provided by the employer or by a third party under an arrangement with the employer;
- an employee engages in criminal conduct and is unable to attend work because they have been convicted and imprisoned for a serious offence;
- where a sanction has been imposed on an employee because of their conduct, which prevents them from carrying out their duties. For example, a truck or bus driver loses their driver's license and is legally unable to drive a motor vehicle and who cannot reasonably be employed on alternative duties;
- an employee engages in conduct that is inconsistent with the duties or obligations they were employed to perform (see the case example below).
Case example – train driver terminated for drink driving conviction out of work hours
In Sydney Trains v Andrew Bobrenitsky [2022] FWCFB 32, Mr Bobrenitsky was employed as a train driver with Sydney Trains. During a day off work, Mr Bobrenitsky was arrested and charged with driving a motor vehicle with a blood alcohol concentration 4 times over the legal limit. Less than 24 hours after his arrest, Mr Bobrenitsky attended work.
Mr Bobrenitsky was later convicted for having a high-range prescribed content of alcohol (PCA) whilst driving (in the incident, which occurred outside work hours) and was sentenced to 2 years of community service and had his licence suspended for 6 months. Mr Bobrenitsky's employment was subsequently terminated, as Sydney Trains determined that his out of hours conduct constituted serious misconduct and was in breach of their policies and procedures.
Mr Bobrenitsky lodged an unfair dismissal claim.
The Fair Work Commission decision
At first instance, Deputy President Cross of the Fair Work Commission found that Mr Bobrenitsky's dismissal was harsh, unjust and unreasonable.
The decision was made on the basis that it related to "out of work conduct that could never constitute a valid reason for termination", as a drivers' licence was not required for Mr Bobrenitsky to perform the inherent requirements of his role as a train driver.
Matter appealed to the Full Bench
On appeal, however, the Full Bench overturned this decision and held that Mr Bobrenitsky had not been unfairly dismissed, as the dismissal related to a driving offence that was connected to his employment.
After considering the inherent requirements of Mr Bobrenitsky's position as a train driver, the Full Bench found that in his role as a train driver, Mr Bobrenitsky had a duty to ensure that he did not have any alcohol in his system and was able to assess his own ability to drive a train safely. The Full Bench highlighted that Mr Bobrenitsky attended work less than 24 hours after he had returned a positive blood alcohol reading with a high-range PCA.
The Full Bench found that Mr Bobrenitsky failed to take any steps to determine whether there was any residual alcohol in his system when he arrived at work and/or self-report that he could not drive the train safely. This was in circumstances where Mr Bobrenitsky had attended work with alcohol in his system on two previous occasions, which was only discovered because he had been randomly tested at work.
Key takeaways
Whilst an employer of course does not have an absolute right to control its employees' conduct outside of work, some out of work conduct can impact an employee's employment. Whether this is the case will depend on all of the relevant circumstances in a particular matter. This will include, for example, the relevant employment contract and the employer's policies and procedures.
If you find yourself in a situation where your out of hours conduct is in question, it is critical to obtain advice as soon as possible, so you are aware of your rights and obligations and minimise the risk of out of work conduct adversely impacting your employment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.