With the proliferation of social media use and the ever-blurring lines between your work and private life, it is now significantly harder to recognise which aspects of your life your employer has control over. In short, it has been consistently recognised that out of hours conduct may constitute valid reason for dismissal. However, the circumstances are limited.
What is the test?
Following from the seminal decision in Rose v Telstra, we know that there must be a relevant connection between the out of hours conduct in question and the employment relationship. In summary, it must be shown that:
Essentially, the conduct must have been of ‘such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee’. However, it should be noted that even if you have engaged in criminal conduct, it does not follow that the criminal offence alone should warrant a dismissal. In this case, the criminal activity must still be ‘sufficiently connected’ to your employment.
What sort of conduct would fall within this scope?
A bar fight?
Fighting with another employee out of hours did not meet the above test in Rose. Factors influencing the decision included:
Social media content?
An employee who sent explicit private messages on Facebook Messenger to 20 of his Facebook friends (19 of them being colleagues) was validly dismissed, for the following reasons:
In Applicant v Employer, an employee attending training at a hotel groped a waitress at that hotel after work hours. His dismissal was valid for the following reasons:
The case examples above demonstrate both the importance of establishing a “sufficient connection”, as well as the influence contextual circumstances can have upon the decision of a case.