Can I dismiss an employee for their out of hours conduct?

Yes, but only in limited circumstances.

A Fair Work Commission’s (FWC) decision (Conrad John Corry v Australia Council of Trade Unions t/a ACTU) recently found that an employer’s decision to dismiss an employee for his out of hours conduct was not an unfair dismissal.

When assessing the effect of the employee’s out of hours conduct, the FWC was satisfied that posting an offensive and discriminatory post (violence, racist, homophobic, etc) on Facebook and on the employer’s internal messaging services was likely to cause serious damage to the relationship between the parties and was also incompatible with the employee’s duties to the employer.

The FWC also considered the employer’s relevant policies and held that the employee failed to observe the employer’s values, code of conduct and appropriate workplace behaviour policy. Ultimately, this was a breach of the employer’s policies and constituted serious misconduct.

Dismissal in limited circumstances

While this decision provides greater clarity on when employers can dismiss their employees for their out of hours conducts, this is limited to circumstances when the offending conduct (Rose v Telstra Corporation Limited):

1. is reasonably likely to cause serious damage to the relationship between the employer and the employee;

2. damages the employer’s interest; or

3. is incompatible with the employee’s duty.

Accordingly, each case needs to be assessed on its merits.  Not every instance of a ‘stray’ social media post will automatically warrant termination.

Low-risk approach to dismissing

When relying on out of hours conduct for termination, employers should ensure that they have implemented policies that:

1. set out the organisation’s values, code of conduct and acceptable workplace behaviour;

2. clearly define the behaviours that will be a breach of the code of conduct; and

3. provide for the employee’s obligations and their duty to comply (e.g. not to bring the organisation into disrepute).

Employers should also conduct regular workshops/training to help raise employees' awareness of the policies and their duty to comply to avoid arguments that they were unaware of their obligations or did not fully understand the practical outcomes of their behaviour.

Provided you have carefully considered the out of hours conduct, be reasonably satisfied that it is qualified (by the requirements above) and followed the appropriate process, termination will likely be low risk.   

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