Although it is generally accepted that employers do not have the ability to control employees conduct outside of the workplace, there are certain circumstances where an employee’s conduct outside of work may be inconsistent with their employment obligations. As such, certain out of work conduct may give rise to an employer’s right to terminate.

Cases are assessed on their individual circumstances to determine if there is a sufficient connection between the employee’s out of work conduct and their employment.

 

The Test

In Rose v Telstra [1998] AIRC 1592, the Court set out the guiding principles to be considered when determining whether conduct outside of work has a sufficient connection to the employment relationship. The Court found that it must be shown that:

  • When viewed objectively, the conduct is likely to cause damage to the relationship between the employee and employer; or
  • The conduct damages the employer’s interests; or
  • The conduct is incompatible with the employee’s duties.

This is a high bar for employers to satisfy themselves with as the Court concluded that the conduct must be of ‘such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee’.

 

Examples of when out of hours conduct can be connected to employment

There have been several cases in which the Court has examined the question of whether an employee’s out of work conduct falls within the scope of the employment relationship. The Courts have held that a sufficient connection exists in circumstances where:

  1. The employee was wearing the company uniform at the time of the conduct (Rose v Telstra [1998] AIRC 1592);
  2. The employee was on duty at the time of the conduct (Rose v Telstra [1998] AIRC 1592);
  3. The conduct occurred in a public place (Rose v Telstra [1998] AIRC 1592);
  4. The conduct would affect the employee’s performance (Public Employment Office Department of Attorney General & Justice v Silling [2012] NSWIRComm 118);
  5. The behaviour contravenes workplace policies, guides, codes of conduct or handbooks (Damien O’Keefe v William Muirs Pty Ltd t/a The Good Guys [2011] FWA 5311);
  6. The location where the conduct occurs was arranged by the employer (e.g. hotel or conference) (Applicant v Employer (U2014/1450) [2015] FWC 506);
  7. The location of the conduct arose as a result of the employment (Applicant v Employer (U2014/1450) [2015] FWC 506);
  8. The conduct has the potential to damage the employer’s reputation (Applicant v Employer (U2014/1450) [2015] FWC 506).

 

Recent Case Example: Bobrenitsky v Sydney Trains (U2021/1757) [2021] FWC 3792

Recently the issue of out of work conduct was examined in Bobrenitsky v Sydney Trains (U2021/1757) [2021] FWC 3792 which examined Sydney Trains termination of Mr Bobrenitsky following his receipt of a Court Attendance Notice for driving under the influence of a prescribed content of alcohol (high range), outside of work hours.

Mr Bobrenitsky notified Sydney Trains of the charge as required by Sydney Train’s Code of Conduct. He was then suspended with pay. Subsequently, Mr Bobrenitsky was dismissed on 13 January 2021. Mr Bobrenitsky appealed this decision at the Transport for NSW Disciplinary Review Panel, which affirmed the dismissal on 18 February 2021. He then lodged an appeal with the Fair Work Commission.

The decision of Deputy President Cross held that the dismissal was unfair as the only connection to the workplace was Mr Bobrenitsky’s notification of the offence.

The Commission found that the offence lacked the required connection to employment as:

  • it took place outside of working hours;
  • Mr Bobrenitsky’s shift was not until the next morning
  • Mr Bobrenitsky was not on call at the time;
  • Mr Bobrenitsky did not require a valid driver’s licence to drive trains;
  • There was no real risk of damage to Sydney Train’s reputation; and
  • Sydney Train’s Code of Conduct was not seen to have a clear policy on out-of-hours drink driving.

Accordingly, the Commission held that Mr Bobrenitsky’s dismissal was ‘harsh, unjust and unreasonable’ due to the conduct being outside of work and there being no sufficient connection between the offence and his employment. The Commission ordered that Sydney Trains reinstate Mr Bobrenitsky to his former position and that he be back paid.

 

Lessons for Employers

Employers should exercise care when considering terminating employees for out of work conduct. Employers must ensure a clear connection can be made between the employment and the conduct before taking any disciplinary action.

Additionally, employers should ensure that their workplace policies/Code of Conduct outline appropriate and inappropriate behaviour.