What's 'in connection' with work (rest and play)?

Recent cases address employer liability for employee misconduct outside of work

What's 'in connection' with work (rest and play)?

Many of us spend a rather large portion of our waking hours each week at work, meaning that our colleagues are often who we spend the most time with. Research shows that not only is work important in building social relationships, but those social relationships make us better at our work – it’s something to be encouraged.

So, it’s unsurprising that those social relationships have a tendency to carry on outside of the workplace (and working hours) – whether that’s at the pub on a Friday evening, “kicking on” after a work function, or keeping the conversation going through social media chat groups.

Of course, the question for employers becomes what can be done when employees behave badly outside of what is traditionally considered to be the workplace. It’s a timely question that is worth revisiting following two recent decisions.

Whilst out-of-hours conduct may be a reason to terminate an employee’s employment (or take other disciplinary action), the employer will need to show that the conduct occurred “in connection with work” – a phrase which will be considered in a manner that is beneficial to the particular employee in question and involve a consideration of all of the circumstances including:

  • The nature of the out-of-hours conduct (what happened and where did it occur).
  • The circumstances in which the out-of-hours conduct occurred.
  • The purpose and nature of the employment (including the nature of the business, and role and duties of the employee concerned).
  • The express and implied terms of the contract of employment.
  • The effect of the conduct on the employer’s business (or its effect on other employees of the employer).

Recent case law on out-of-hours conduct

Each of the following decisions, one of the High Court and one of the Full Bench of the Fair Work Commission (FWC), both handed down in the last few months, consider the question of connection with work in some detail.

The proceedings in the High Court were to determine whether the employer was vicariously liable for the negligent act of one employee against a colleague. Central to the proceedings was the question as to whether the employee was acting in connection with his employment.

Both employees worked at a restaurant at a resort and their roles required them to live onsite, where they shared a room in accommodation provided by the employer.

After work one evening, the employees went for a drink, returning to their room at about 1 a.m. The employee left shortly afterwards for some more drinks, while the colleague went to bed. During the night, the colleague was woken up by the employee urinating on him in his bed. The colleague inhaled and choked on the urine and suffered a cataplectic attack caused by the emotional stress of the situation.

Scope of employment

The High Court confirmed that an employer will be liable for the acts of employees committed in the course or scope of the employment, but needed to consider whether the employee was acting as a “stranger to his employer” and whether he was on a “frolic of his own.”

In deciding that the employee was not acting in connection with his employment, the High Court considered the points set out above and, importantly, that the behaviour engaged in by the employe was so far removed from the duties and his employer’s expectations of him that the employer could not be held liable.

In the second matter, the Full Bench of the FWC was required to consider an appeal of an unfair dismissal decision in which the employee had been reinstated to his employment notwithstanding that he had been an active participant in a Facebook group of current and former employees where offensive and pornographic material was shared.

While agreeing that an employee’s employment may be terminated for out-of-hours’ conduct, the FWC considered that neither the composition of the Facebook group, (being employees or ex-employees), nor the offensive nature of the posts (although contrary to the employer’s policies and procedures), were enough to establish the requisite connection with the workplace. At the same time, the FWC was clear to admonish the employee’s behaviour, making clear that the type of material shared in the Facebook group “has no place at or in any workplace, regardless of the nature of the work or the constitution of the workforce.”

The FWC held that the employee’s conduct occurred outside of working hours and in a group set up for consenting friends and there was no evidence that his conduct had an impact at the workplace.

What does this mean for employers?

At first glance, the FWC decision to reinstate the employee despite the “abject stupidity” of his behaviour, appears somewhat at odds with the employer’s positive duty to take reasonable and proportionate measures to eliminate sex discrimination and sexual harassment in the workplace.

Employers may have little control over employees’ conduct outside of the workplace or after working hours, including at end of year “after parties,” but they do have a responsibility for how that conduct impacts their work or the work of others.

If out-of-hours conduct is spilling over into work time or otherwise causing disruptions to work that make it difficult for employees to do their jobs or work co-operatively, then employers will need to implement strategies to effectively manage those impacts and those relationships in light of these decisions and the employer’s legal obligations to ensure a safe workplace.

Emily Baxter is a special counsel specialising in employment and industrial relations at Kingston Reid in Sydney.

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