Can You Dismiss an Employee for Serious Misconduct Outside Work?
What happens outside the workplace doesn’t always stay outside the workplace.
An employee gets into serious trouble at a weekend party. Someone posts it on social media. Their employer finds out on Monday morning. Can the employer sack them?
Not necessarily.
An employee’s private life is generally their own business. But there are circumstances where conduct outside work can become an employment issue — and even justify dismissal.
It all comes down to the connection with the job. The key question isn’t simply: “Did the employee do something seriously wrong?”
The question is: “Does that conduct have a sufficient connection with the employment relationship?”
The Fair Work Commission looks at factors including whether the conduct is likely to seriously damage the relationship between employer and employee, damage the employer’s interests, or make the employee unable to properly perform their role.
Here’s an example
Imagine a sales employee gets into an argument at a private function on Saturday night. There is no connection with work. The employer isn’t mentioned. No customers are involved.
It may be difficult for the employer to justify disciplinary action simply because the employee behaved badly.
Now change the scenario.
The employee is a senior manager, identifies themselves as representing the company, threatens a customer and the incident is filmed and widely circulated online. That’s a very different situation.
The conduct may have a direct impact on the employer’s interests and the employment relationship.
Social media makes things even trickier
Employees often assume that what they post on a personal Facebook, Instagram or TikTok account is completely private. Employers sometimes assume the opposite. Neither approach is necessarily correct.
An employee’s personal social media activity can become relevant where, for example:
- the employer or workplace is identified;
- the employee identifies themselves as working for the business;
- confidential information is disclosed;
- customers or colleagues are targeted;
- the conduct damages a genuine business interest; or
- the conduct is inconsistent with the employee’s particular role.
But simply finding a post offensive or embarrassing isn’t necessarily enough.
What about criminal conduct?
This is another area where employers need to be careful. An employee being charged with an offence doesn’t automatically mean they can be dismissed. There is an important difference between:
“The employee has been charged“ and “The employer has established conduct that makes the employee’s continued employment untenable.”
The circumstances, the evidence, the employee’s role and the connection with the workplace all matter. For some roles, particularly those involving vulnerable people, children, security, financial responsibilities or professional obligations, out-of-hours conduct may have a much more direct impact on employment.
Don’t make the decision in the heat of the moment
This is where employers can get themselves into trouble. A manager sees a shocking social media post and immediately decides: “That’s it. You’re fired.”
The problem? The employer may not yet know the full story. Before taking disciplinary action, investigate what happened and give the employee an opportunity to respond.
The employee may have a completely different explanation. And if dismissal is being considered, the employer needs to be able to explain why the conduct has a sufficiently serious connection to the employment relationship.
The golden rule
Don’t confuse bad behaviour with dismissible misconduct. An employee does not lose all rights to a private life simply because they have a job. But an employee’s private conduct can become an employment issue where it seriously affects the employer, the employment relationship or the employee’s ability to perform their role.
WHAT EMPLOYERS SHOULD DO
☑ Don’t act immediately. Investigate first.
☑ Work out the connection to employment. Ask how the conduct actually affects the business or employment relationship.
☑ Check the employee’s role. The expectations attached to a senior manager or professional role may be different from those attached to other employees.
☑ Check your policies. Make sure the alleged conduct actually engages a workplace policy or obligation.
☑ Give the employee a chance to respond.
☑ Document the decision. Record the evidence and why the conduct warrants disciplinary action.
☑ Get advice before dismissing. Particularly where the conduct occurred entirely outside work.
The takeaway: An employee’s private life is not automatically the employer’s business. But when out-of-hours conduct crosses into the workplace and seriously affects the employment relationship, disciplinary action — including dismissal — may be possible.