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Employer interest in employee’s out of work conduct


Off the clock

Employers are often uncertain as to how to deal with the out of work hours conduct of employees.

As highlighted last week in our blog – The importance of procedural fairness – “it’s all about the process" former Cronulla Sharks (the Club) player Todd Carney and his legal advisors indicated that legal action would be initiated against the Club.

Carney has claimed that the Club did not afford him with procedural fairness when it terminated his contract for his off-field indiscretion.

Employers are often uncertain as to how to deal with the out of work hours conduct of employees.

While employees generally can do as they please in their private time, employers may have an interest in the employee’s activities where the conduct:

  • Can damage the interests or reputation of the employer;
  • Is incompatible with the employee’s duties with the employer; or
  • Could seriously damage the employment relationship between the employer and the employee.

For example, out of work conduct involving dishonesty with money or goods, or violence, bullying, harassment, discrimination, criminal conduct or intimidation could be relevant to employment that is in the public eye, involves law enforcement or a relationship of trust with the employer’s customers or clients.

With the rise of social media, it is increasingly common for the out of work hours conduct of an employee to move from the private sphere to the public. For example an employee’s Facebook post “venting” about their job or workplace may be seen by other employees, clients or customers, and be of such a nature that the posting of them in public forums damages the reputation of the business and/or result in the loss of revenue, clients and/or customers for the employer.

Having a carefully drafted Code of Conduct or other policies is the starting point for managing the out of work hours conduct of employees. Such policies should outline the expectations of employees and that disciplinary action may be taken where their out of work hours conduct has a connection with or impact on the employment. It is also important to provide training for employees in what is expected of them and also in how their out of hours conduct, even on social media, can impact on the relationship between the employer and employee.

Obviously, there is a line beyond which it is not reasonable to have an interest in an employee’s out of work hours activities and there are plenty of jobs where any sort of outside work conduct would have no bearing on the employment relationship. Commonsense should prevail and employers should think carefully before linking outside work conduct to the employment relationship.

Next week we will look at the important things employers should consider in the disciplinary process.


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