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