Unfair dismissal and conduct out of working hours


The following extract from a recent Fair Work Commission unfair dismissal case deals with the legal principles which apply to the fair work implications of an employee’s conduct out of working hours.

“In addressing whether the misconduct had the relevant work connection as to bring it within the purview of the employment relationship, I note the comments of the Full Bench in John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo 29 which made the following observation at [36] of their decision:

[36] Generally employers have no right to control or regulate an employee’s ‘out of hours conduct’. But if an employee’s conduct outside the workplace has a significant and adverse effect on the workplace, then the consequences become a legitimate concern to the employer. 30 A range of ‘out of hours conduct’ has been held to constitute grounds for termination because the potential or actual consequences of the conduct are inconsistent with the employee’s duty of fidelity and good faith. This concept is closely allied to the implied term of ‘trust and confidence’ in employment contracts which relates to modes of behaviour which allow work to proceed in a commercially and legally correct manner.31

[103] In Rose v Telstra Corporation, 32 (Rose) the Commission stated that the circumstances in which ‘out of hours’ conduct might constitute a valid reason for dismissal were limited to cases where the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee, damage the employer’s interests, or is incompatible with the employee’s duties as an employee. The Commission concluded that, in essence the relevant conduct must indicate a repudiation of the employment contract by the employee.

[104] In Luke Colwell v Sydney International Container Terminals Pty Limited 33 McKenna C stated:

[79] What was put as what I accept is a real, contestable issue regarding the dismissal is that this was out-of-work conduct, not involving any work-related facilities, and involving the applicant and employees of the respondent who had self-selected to be Facebook friends – and in relation to conduct among whom the applicant has forcefully submitted is no proper business of the employer under the terms of its policies or otherwise. Here, however, 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. Employment by the respondent of the applicant and the 19 employees is the relevant nexus here, it appears, and their being Facebook friends stemmed only from the employment. Approached another way, if there was any nexus other than that those individuals were all employees of the respondent, there was no evidence of it. The applicant selected those to whom to send the video by Messenger, including 19 of the 20 individuals who were both employees of the respondent and Facebook friends; as noted earlier, it was conceded in the proceedings that this could not have been a mishap of inadvertently hitting a “send all” or equivalent. A female employee of the respondent made plain to the applicant her comments about the video in the Messenger commentary that then went between them – and, it may be noted, in that commentary she drew a connection with work in her responses to him.’

[105] In Stephen Keenan v Leighton Boral Amey NSW Pty Ltd 34 VP Hatcher made the following comments where an employee had been dismissed for conduct involving sexual harassment:

“Because it was conduct which occurred in essentially a private social setting, albeit involving persons sharing a common employer who had just attended an official Christmas function, it was not conduct which could be regarded as indicative of a rejection or repudiation of Mr Keenan’s employment contract.”

[106] The forwarding of the offending image occurred outside of working hours and was not sent using the property of Sydney Trains. An employer should not delve into and concern itself with the private activities of its employees which occur outside working hours unless a real and relevant connection between the private activities of the employee and the employment relationship can be shown to exist.

[107] Temporal considerations such as whether the conduct occurred outside or during working hours are relevant, but only as a part of the entire factual matrix. In this instance there was no outside work connection other than the social messaging app being used. Mr Fussell had not met Ms Abbott outside of work; nor did he have Ms Abbott’s personal phone number or email.

[108] Sydney Train’s Social Media Policy, which Mr Fussell states he was aware of and supported, 35 is expressed to apply to out of work conduct when interacting with other staff including on private social media platforms.

[109] The sending of the offending image was work related in that it was contrary to the Use of Social Media Policy of Sydney Trains. Further, Ms Abbott brought the conduct to the attention of other Sydney Train employees where it soon came to the attention of Sydney Trains’ management and Ms Abbott expressed to Sydney Trains her concern that upon return to the workplace following her maternity leave she may meet Mr Fussell face to face. These circumstances cause a sufficient connection between Mr Fussell’s out of hours conduct and his employment to bring the circumstances within the principles articulated in Rose.

[110] In my view, Mr Fussell’s conduct in this instance was repudiatory; the misconduct constituted the sending of an image that was offensive and in breach of Sydney Trains’ employment policies. It therefore constituted a valid reason for termination.

[111] Having found that a valid reason for the dismissal exists, the Commission is obliged to consider the other factors contained in s.387 (b)-(h) of the Act which may be described as mitigating factors that may establish the unfairness of the dismissal. In Parmalat Food Products Pty Ltd v Wililo 36 a Full Bench stated at [24]:

“[24] … The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. …”

[112] The Full Bench in Container Terminals Australia Limited v Toby 37 stated at paragraph 15:

“In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable.”

Fussell v Transport for NSW T/A Transport for NSW  [2019] FWC 1182 delivered 22 February 2019 per Bull DP