Case highlights lines of appropriate conduct

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The case currently underway in the UK of an HR manager who is claiming he was forced out of his job after being disciplined over his conduct on LinkedIn has set tongues wagging. (Original story: HR manager smoked out for posting CV on LinkedIn)

It has also brought to the fore the legal questions over when personal conduct can violate contractual terms of employment, and what would happen if the same or similar circumstances occurred in Australia.

In the case overseas, a former graduate and development manager for a gas company said he was held to be in breach of his contract and company policy on conflicts of interest for uploading his CV (which the company says contained false information) and ticking the ‘open to career opportunities’ box.

The firm said that by ticking the career opportunities box, Flexman was in breach of a new company policy on conflicts of interest.

According to EI Legal, it would be unlikely that an employer could legally tell an employee that they cannot indicate that they are willing to hear about employment opportunities if such expressions of interest occurred outside of work hours and on the employee’s personal computer.

The HR manager was also accused of inflating his role and achievements and misrepresenting the company in order to portray himself in a positive light, presumably to further his career.

Notably, conduct outside of work hours could be used as a valid reason for dismissal if the conduct:

  • is likely to cause damage to the employment relationship;
  • causes damage to the employers’ interests (both business and reputational); and
  • is otherwise incompatible with employee duties.

Australian courts would also likely examine any relevant terms in the employment contract relating to employee conduct. Such terms could incorporate policies relating to:

  • general employee conduct, such as a Code of Conduct;
  • internet usage policies;
  • confidentiality; and
  • conflicts of interest.

“Where a CV posted on Linked In refers to confidential information of the employer or of a third party to whom the employer has an obligation to maintain confidentiality, the employee may have breached his duty of confidentiality,” EI Legal advised.

Additionally, any policies on which an employer seeks to rely must be applied equally to all employees, otherwise a court or tribunal might take the view that the reason for dismissal was flawed and the employer could potentially open themselves up to other types of claims, such as for discrimination.

 

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