Your behaviour: In and out of the workplace

1 February 2018
Most people think that their behaviour outside of the workplace is just that: independent to the workplace. It is often surprising to find out that activities that you participate in, outside of work, may cause you to lose your job.

Did you know that even after your working day is over, your actions – in the real world or on social media – can sometimes be linked back to your employer? It’s a scary thought, but very real. Many people don’t realise how serious this can be, so we’re going to look at what you can do to make sure you stay on the right side of this very blurry line.

Companies have previously disciplined employees for out of work conduct with mixed success, but the rise of social media platforms have made out of work conduct more pronounced and easier to monitor. We are living in a time where technology is evolving faster, and the courts are under pressure to adapt.

Up until now, the Commission has applied a “test” created in 1998 to work out whether your conduct is connected to your employment. [1] Social media has exploded with the rise of Facebook in 2004, and sites like Twitter, Instagram and Snapchat. No wonder there is confusion about our modern behaviour. The Commission and employers are navigating their way through the evolution of technology, but they are applying a test that was created before the social network platform explosion. Employers are now more likely to have workplace policies about social media usage.

Employers are expanding behavioural codes to try and increase their reach over employees. For example, in August last year it was revealed the Turnbull government wanted to introduce policy that limits a public servant privately liking or sharing material critical of the government. The CPSU was vocal raising strong and valid objections to such over-reach and limitation on freedom of speech.

Recent cases show that whether you’re on your smart phone, or having a few extra drinks with workmates on a Friday night, what you do in those moments can have a serious effect on your employment, if your behaviour or actions can be linked or connected to your employer, and their public image.

For example, in a recent case, an employee was dismissed for his conduct following a team building event. The employee became aggressive toward workmates, and made inappropriate comments to a female colleague during a cab ride after the event. Even though employee’s actions occurred well outside business hours, the Fair Work Commission found that there was a sufficiently strong connection to employment, and supported the termination of the employee. [2] The Commission has been consistent in applying the ‘connection test’ [3] to decide if this conduct is sufficiently linked to your employment. It is looked at in an objective manner, and this connection has been found to include your breaks in employment, such as the time between split shifts. [4]

A recent decision [5] considered if serious damage to an employer’s brand is a valid reason for dismissal, for example, where an employee made comments in an online forum with regard to internal processes. The Commission decided that this should have been a disciplinary matter dealt with by the employer (ie warning, suspension) and should not have resulted in termination.

Now, any employee reading this might worry that their employer is watching their every move, just waiting for an opportunity to terminate their employment. This is not so.  Many things an employee chooses to do will have no relationship or connection to their employment.

However as employment lawyers, we see many cases of employees being dismissed because of inappropriate behaviour in the workplace, and afterhours. Christmas is the peak season for many of these situations, as employees start to attend Christmas and New Year’s Eve parties fuelled with alcohol. That one social media post to the world, that one inappropriate comment to a colleague, might be the very thing that causes you to lose your job.  Social media leaves a digital record that is hard to erase. The reality is that the line between the personal and professional is getting more and more blurred but it’s still important not to readily concede that out of work conduct is connected to employment. 

 

[1] Ross v Telstra Corporation Limited (1998) AIRC 1592.

[2] Rogers v Allianz Australia Services Pty Ltd T/A Club Marine Insurance (2017) FWC 537.

[3] Ross v Telstra Corporation Limited (1998) AIRC 1592.

[4] Anthony Farquharson v Qantas Airways [PR971685] 10 August 2006.

[5] Daniel Starr v Dept. Human Services [2016] FWC 1460.

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