Australia: Employment Tribunal holds that employers can discipline employees for out of hours conduct related to their employment

The Fair Work Commission has held that an employer had a valid reason to dismiss an employee for sending an offensive video to a group of colleagues via Facebook messenger outside of working hours.

Under the Fair Work Act 2009 (Cth), the Fair Work Commission must consider  whether there was a “valid reason” to dismiss an employee when determining whether the dismissal was ‘unfair’.

Commissioner McKenna held an employer may investigate an employee’s conduct towards another employee, even if that conduct occurs outside of their physical workplace, noting that the use of social media outside of working hours to bully and sexually harass another employee is just one example of conduct that is within an employer’s ambit of supervision.

The Commissioner accepted an employer’s right to monitor an employee’s out-of-work conduct which is unrelated to any of their work-related facilities – and which involves self-selected  Facebook friends , was a “real, contestable issue”.

Nonetheless, the Commissioner ultimately held that in the present case “there was nothing to indicate that there was anything other than the cornerstone of the employment relationship which led to the applicant having 20 work colleagues as his Facebook friends and sending the video to 19 of them by Messenger.”

Furthermore, Commissioner McKenna asserted an employer may investigate matters that occur outside of working hours where there is a relevant nexus or connection between that conduct and the interests of the employer. Here, the Commissioner held that “the sending of that video… had the potential to feed into the employment considered in terms of the [respondent’s] policies and code.”

This decision confirms employers may monitor, investigate and take disciplinary action in relation to an employee’s out of work conduct, so long as the conduct has a sufficient connection to their employment.