Out of hours conduct under the investigative spotlight | WISE Workplace

by WISE Legal Counsel

Bundy-ing off does not necessarily mean that employees’ behaviour is no longer under scrutiny by their employer.

Increasingly, WISE is being asked to investigate misconduct occurring outside the physical confines of the traditional workplace at hours that are usually considered private.

This article considers circumstances where employees’ out of hours conduct might fall under the investigative spotlight.

It should be noted at the outset that this article is not suggesting that employers are entitled to scrutinize all employees’ private behaviour. Indeed, to the contrary, the general rule is that employers do not have a right to regulate or control employees out of hours conduct. However, where the employee's conduct outside the workplace has a "significant and adverse effect" on the workplace, then the consequences become a legitimate concern of the employer. A range of ‘out of hours conduct’ has been held to constitute grounds for termination because the potential or actual consequences of the conduct are inconsistent with the employee’s duty of fidelity and good faith. This concept is similar to the implied term of ‘trust and confidence’ in employment contracts which relates to that type of behaviour which allow work to proceed in a commercially and legally correct manner. (John Pinawin T/RoseVi.Hair.Face.Body v Mr Edwin Domingo [2012] FWAFB 1359.)

Over the past few years WISE has been asked to investigate the out of hours conduct of employees who, for example: (a) work from home: (b) are required to travel; (c) chose to post inappropriate comments about their workplace or co-workers on social media websites; or (d) are subject to workplace policies requiring them to at all times to behave in a way that uphold the employer’s values, integrity and good reputation. The Australian Public Service Code of Conduct provides a good example of this requirement.

Investigations involving out of hours conduct involve an assessment of whether there is a nexus with the alleged misconduct and that employee’s employment.

Recent employment law cases have shown that even though certain employee conduct occurred outside usual work hours, and was of a nature ordinarily considered ‘private’, it may still have occurred ‘in the course of employment’.

For example in a recent Federal Court appeal concerning work cover entitlements, Justice Nicholas decided that a female human relations worker for a Commonwealth agency was injured ‘in the course of employment’ when a light fitting fell on her whilst she was engaging in sexual intercourse in her motel room with a male friend during a work trip. Having found that her sexual activity was not unlawful, Justice Nicholas held that there was a sufficient nexus between the injuries suffered by the applicant and her employment. ‘The relevant connection or nexus to employment was present in this case by virtue of the fact that the applicant’s injuries were suffered while she was in the motel room in which her employer had encouraged her to stay.’ (PVYW v Comcare (No 2) [2012] FCA 395)

Whilst case-law has established the rights of employers to take action in respect of certain misconduct outside work hours, it is preferable that arguments concerning this right are circumvented. Employers should take proactive steps to prevent this conduct at the outset. Employers should consider:

  • carefully drafting policies prohibiting  out of hours misconduct that is sufficiently connected with and/or could have an adverse effect on the workplace.
  • conducting training on these policies, particularly on the likely consequences if they are breached