When an employee’s private life matters
What an employee does in their private life is their business unless that conduct:
- viewed objectively, is likely to cause serious damage to the relationship between the employer and employee; or
- damages the employer’s interests; or
- is incompatible with the employee’s duty as an employee.
The law provides that “the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations, an employer has no right to control or regulate an employee’s out-of-hours conduct”.
What out-of-hours conduct might meet these requirements?
Each circumstance needs to be assessed on its own facts.
Considerations include:
- the position held;
- length of service;
- nature of the conduct;
- the conduct’s impact on the employment relationship;
- any contrition shown;
- whether warnings have been issued;
- steps taken to reduce the likelihood of a repetition of the conduct; and
- whether the employee has been honest and cooperated in any investigation.
Examples of where the requirements outlined above may be met:
- a conviction for drink-driving resulting in the loss of an employee’s driver’s licence if the employee needs their licence for work;
- a conviction for credit card fraud outside the workplace, if this is inconsistent with the inherit requirements of the employee’s position, e.g. certain positions with a financial institution employer;
- sexual harassment, bullying or discrimination outside the workplace involving work colleagues; and
- fighting after work when still wearing a work uniform that identifies the employer.
Tips to minimise the risk of out-of-hours conduct affecting your business
Set clear expectations of the behaviour and conduct expected to be upheld by employees.
Ensure workplace policies include out-of-hours conduct, where relevant, especially bullying, discrimination and sexual harassment policies.
Ensure employees receive training in relation to these policies and expectations.
By Kelly Godfrey