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Occasionally, employees will engage in outside-of-work conduct which may cause their employer to want to terminate their position at the organisation. Depending on the circumstances, though, this may give rise to an unfair dismissal claim, and employers should be careful to ensure that they have reasonable and indisputable grounds for terminating the employment of an employee who engaged in poor conduct so that the decision does not give rise to an unfair dismissal claim.
As far as the Fair Work Commission is concerned, employers have “a right to extend any supervision over the private activities of employees” only in exceptional circumstances and for an employer to dismiss an employee based on their outside-of-work conduct it must be able to draw a direct connection between the employee’s outside of work conduct and their employment.
What type of outside-of-work conduct might lead to dismissal?
Employers should take the approach of placing less emphasis on the type of outside-of-work conduct which occurred and placing more emphasis on what the conduct means in relation to the employee’s role at the organisation.
Although it is easy to blur the lines between an employee’s private life and their work life thanks to long hours, social media and close, interpersonal relationships between colleagues, not all questionable or poor conduct will or should lead to an employee’s termination.
In general, an employer may dismiss an employee for outside-of-work conduct if it is found that the conduct:
- has the potential to seriously damage the relationship between the employee and their employer;
- is likely to or has damaged the employer’s business interests; and/or
- is in contravention of the employee’s role or duties.
It is not enough for an employer to simply decide that any outside-of-work conduct had the potential to damage the organisation’s reputation or impeded the employee’s capacity to perform their duties. The employer must be able to evidence that the outside-of-work conduct was in some way detrimental to the relationship between them and the employee. An example of this could include the employee representing themselves as such (either by announcing which organisation they work for or wearing a uniform associated with that uniform) at the time the outside-of-work conduct took place.
Similarly, when an employee commits a criminal offence outside of work, the conduct may not warrant an automatic dismissal. Employers should be mindful that termination may be unlawful if the offence carried out by the employee did not deem them unable to perform their duties. If the employee is no longer able to carry out their role because of the offence committed, then there may be grounds for termination.
Can an employee’s conduct on social media be grounds for legal dismissal?
The rise in popularity of social media over the last fifteen years has brought with it some unintended side effects, including the ease with which a person can bully and/or harass others. Sometimes social media is used by a person to partake in bullying and/or harassment against their colleagues or peers or in a way which may bring their employer into disrepute.
The law is not black and white on whether misuse of social media equates to automatic grounds for dismissal, however, where outside-of-work conduct on social media is inconsistent with the workplace policies an employee is expected to comply with, the employer may have grounds to legally terminate their employment.
If you would like to discuss how outside-of-work conduct might form grounds for an employee’s dismissal, our experienced employment lawyers can assist.