Employees Actions Away from the Workplace

Often an employee does something away from the workplace that causes concerns to their employer, and the employer is unsure as to what to do. Can they terminate the employee’s employment or not?

The case that is still used as the guiding principles is Rose v Telstra Corporation Ltd (1998). In that case, the then Australian Industrial Relations Commission (now the Fair Work Commission) considered whether an employee could be fairly dismissed for conduct occurring outside working hours. Mr Rose, a Telstra technician, was temporarily working away from his usual location and staying in accommodation paid for through a travel allowance. During his time off duty, he became involved in a fight with another person in a hotel room and suffered injuries.

Telstra argued that the incident damaged its reputation and justified termination of Mr Rose's employment. However, the Commission found that the conduct occurred outside working hours, in a private setting, and had only a limited connection to Telstra. Mr Rose was not wearing a uniform, was not on call, and was not representing the company at the time of the incident.

Vice President Ross held that out-of-hours conduct will only justify dismissal where it is likely to cause serious damage to the employment relationship, damages the employer's interests, or is incompatible with the employee's duties. As none of these factors were sufficiently established, the dismissal was found to be harsh, unjust and unreasonable.

The case remains a leading authority on when employers may rely on out-of-hours conduct as a valid reason for dismissal in Australia.

If you become aware of one of your employees doing something outside the business get advice before doing anything. Andrew can assist in this regard.