Can an employee be terminated for their out-of-work-conduct?

HR needs to ensure that the facts correlate with legal obligations

Can an employee be terminated for their out-of-work-conduct?

The work Christmas after-party that got out of hand, a poorly worded social media post that paints the business in a bad light, inciting violence against police in personal social media posts - these are all cases in Australia where an employee has been terminated for their out-of-work conduct.

“So, the short answer is yes,” said Abraham Ash, director at Australia Business Lawyers and Advisors (ABLA), “but only in certain circumstances.”

Ash told HRD, that the strict legal test to terminate for misconduct outside the workplace needs to prove one of the following three things.

  1. The conduct, viewed objectively, is likely to cause serious damage to the relationship between the employer and the employee.
  2. The conduct damages the employer’s interests.
  3. That the conduct by the employee is incompatible with the employee’s duty as an employee.

Further to that, employers should drill down and fully consider the connection between the conduct and the employment. Was the employee wearing a uniform or sporting the employer’s logo at the time? Was the employee on call at the time? Was there reputational damage to the business and could the public identify the employee as a representative of the employer and therefore damage the employer’s reputation?

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Ash said cases of this type in Australia largely deal with social media posts and employees who, after a work event or conference, continue the evening elsewhere and end up in an altercation. 

A simple Google search reveals hundreds of Australian cases of worker dismissal over social media posts. A 19-year-old Victorian working as a swim instructor for two different swim schools was terminated by one when she only recommended the other swim school to another Facebook user who asked for swim school recommendations in a Facebook community group. The FWC found that her conduct was not serious enough to establish a valid reason for dismissal.

“Another case that came out this year, was the employee who published a series of posts about an anti-vaccine protest in Melbourne,” said Ash. The posts promoted civil disobedience and violence against police and posted positively about the protests, and the employee was subsequently terminated. The commission found in that case, those posts breached the employer’s values, public position, and policies.

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Social media has become a huge part of employment law. “What an employee does on social media sitting at home is conduct that could justify termination over the social media posts if they’re disparaging of the employer or inconsistent with what the employee does in an organization,” said Ash.

“But again,” he continued, “you need to ensure that all the facts line up with case law. The kind of facts you look at are, could the employer be identified from the post? Could other employees see what was posted? And do you have a social media policy in place where the employees are trained to  understand that out of work conduct could justify termination?”

The other area where an employer might have grounds for termination over out of work conduct will be if an employee is convicted or charged with a criminal offence unrelated to the employment.

“If the employer says we can’t have this person working for us, then the question becomes does that criminal charge or conviction have a requisite connection to the employment.” Additionally, criminal record discrimination legislation might be relevant, so employers must consider this issue too.

In essence, HR leaders need to make sure that the facts line up with case law, and you can show that the employee’s out of hours misconduct has some sufficient or requisite connection to the employment.

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