Disciplining employees’ out-of-hours behaviour: a blurred line

16 February 2017 | Justine Kelly, NORTON GLEDHILL

This article is an extract from a longer article that appeared in Internet Law Bulletin.

Employees often work and interact with each other and the world from various locations (in the office, at home, on public transport, at a hotel) across various electronic devices (employer-provided and personal computers, tablets and mobile phones). This raises many issues for employers:

• data security;
• confidentiality;
• privacy;
• time wasting;
• reputational damage; and
• employer liability for conduct by an employee at times and in circumstances which have not traditionally been regarded as work-related.

This article considers the implications for employers of out-of-hours conduct by employees and the circumstances in which disciplinary action can be taken in the context of a working environment with increasingly blurred boundaries.

Extension of the workplace and work activities beyond the traditional

The blurring of work and private life and the interconnectedness of modern society mean that the employee who misbehaves out-of-hours can still be publicly associated with their employer and the employee who sends a message from their personal email can breach an employer's confidentiality or data security obligations. It also means that an employer's legal responsibility for the conduct of its employees extends beyond the traditional idea of the workplace and work conduct.

This blurring of the boundary is an issue dealt with by courts and tribunals in the context of considering whether something has occurred at work or in the course of employment.

Infamously, an injury suffered by a government employee while engaged in sexual intercourse on a work trip was held by the High Court not to have been sustained in the course of her employment on the basis that her employer did not induce or encourage the employee to engage in sexual intercourse.¹ The result was that the employee was not entitled to receive worker's compensation in respect of her injuries. However, it was accepted by the court and by the insurer Comcare that had the injuries been incurred as a result of a slip in the shower, the outcome would have been different, as the provision by the employer of a motel room with those facilities and the employer's interest in the employee presenting for work in a clean and refreshed state would constitute encouragement to use the shower.

Courts have demonstrated a willingness to take a broad view of what constitutes a "workplace" in the context of anti-discrimination and harassment legislation and, by implication, a broad view of the locations at which employers may be vicariously liable. Under the provisions of the Sex Discrimination Act 1984 (Cth) (SDA), an employer may be held vicariously liable for the offending conduct of its employee that occurs "in connection with [their] employment",² unless the employer can demonstrate that it took all reasonable steps to prevent the conduct from occurring. When considering whether sexual harassment at a hotel had occurred at a workplace for the purposes of the SDA, the Full Court of the Federal Court in Vergara v Ewin³ held that it had. In that case, sexual harassment by Mr Vergara of work colleague Ms Ewin started in Ms Ewin's office when Mr Vergara turned the lights off, tried to touch her and said he would only turn the lights back on if she agreed to talk with him. Ms Ewin agreed to talk with him at a nearby hotel where Mr Vergara continued to sexually harass her. In their majority judgment, North and Pagone JJ confirmed that, on the basis that the need to go to the hotel was triggered by a need to deal with the resumption of Mr Vergara's unwanted sexual advances, the hotel was in fact a workplace.⁴

Applying the reasoning in Vergara v Ewin, provided there was a connection with a work-related activity or event, any location (public transport, an airport, the local café) could be classified as a workplace

Decisions by the Fair Work Commission (FWC) also demonstrate an expansive view being taken of when something happens "at work" in the context of workplace bullying. It is not limited to the confines of a particular location or time of day.⁵ Facebook "defriending" was found by the FWC to be evidence of unreasonable behaviour on the part of the alleged bully which justified the making of orders by the FWC to stop workplace bullying.⁶

Given the risks it poses, employers increasingly seek to take disciplinary action for conduct by employees that occurs out-of-hours.

Concluding comments and practical tips

Navigating the intersection of the workplace and an employee's private life can be a complex and uncertain area. However, employers will enhance their ability to take disciplinary action for out-of-hours conduct that affects their legitimate interests where they have set expectations.

Consideration should be given by employers to how workplace policies apply to out-of-hours conduct. Policies should:

• clearly set out the type of behaviour that is unacceptable and explain the potential consequences of the employee engaging in that behaviour;
• be consistent and complement each other (for example, a social media use policy should complement an anti-bullying policy to ensure out-of-hours bullying that occurs through social media accessed from any device is covered);
• be updated to reflect the changing way employees work as well as new technology platforms (for example, while many employers now have policies covering Facebook use, it is important not to be complacent — the advent of Snapchat, WeChat, Tumblr, Pinterest and Instagram has left many employers playing catch-up); and
• be communicated to employees in conjunction with training so that they are understood.

Justine Kelly
Special Counsel, Norton Gledhill
Justine.kelly@nogled.com.au
http://www.nortongledhill.com.au

¹Comcare v PVYW (2013) 136 ALD 1 ; (2013) 303 ALR 1 ; [2013] HCA 41 ; BC201314106.
²SDA, s 106.
³ Vergara v Ewin (2014) 223 FCR 151 ; [2014] FCAFC 100 ; BC201406329.
⁴A narrower view of what constitutes conduct in the scope of employment was taken by the Fair Work Commission in Keenan v Leighton Boral Amey Joint Venture (2015) 250 IR 27 ; [2015] FWC 3156 where sexual harassment by an employee in a bar upstairs after the end of an official work function in the downstairs venue was found not to justify dismissal on the basis that the conduct occurred in a private setting and the social interaction was not organised or authorised by the employer.
⁵ Bowkers v DP World Melbourne Ltd [2014] FWCFB 9227.
⁶ Roberts v VIEW Launceston Pty Ltd (2015) 252 IR 357 ; [2015] FWC 6556.