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After-hours conduct

Feature Articles

Cite as: (2004) 78(4) LIJ, p.42

An employer can discipline an employee for after-hours conduct that is directly linked to employment and which has a serious and significant effect on the workplace or damages the employer's interests.

By Mary-Jane Ierodiaconou

Employers and employees may be liable under anti-discrimination law for the after-hours conduct of an employee if the conduct is in connection with employment.[1] The Victorian anti-discrimination legislation says that an employer will, subject to the various defences in the legislation, be vicariously liable if an employee engages in discriminatory or harassing conduct “in the course of employment”: s102 of the Equal Opportunity Act 1995 (Vic).

There is a similar approach in s106 of the Sex Discrimination Act 1984 (Cth) which requires conduct to be “in connection with the employment” and s18E of the Racial Discrimination Act 1975 (Cth) which requires the conduct to be “in connection with his or her duties as an employee”.

There is a different approach taken in the Disability Discrimination Act 1992 (Cth) in which the conduct needs to be within the scope of the employee’s actual or apparent authority: s123(4).

Anti-discrimination cases indicate that a fact-based approach is taken when deciding whether the discriminatory conduct has occurred in the course of employment.

The factors taken into account in anti-discrimination cases are:

  • whether the harassment/discrimination occurred while the employees were carrying out their work tasks;
  • whether the harassment/discrimination occurred outside work hours or during a work event;
  • where the harassment/discrimination occurred and in particular whether the site was a company site or the site of a company-sponsored event;
  • the relationship between the complainant and the individual respondent in the workplace and whether there is/was any relationship between them outside the workplace; and
  • the policies of the employer.

Discrimination cases

In Leslie v Graham,[2] a former employee brought a sex-discrimination and sexual harassment claim against her former employer and a former co-worker. The employer was a family business and the co-worker was a son of the directors of the employer business. There was evidence that the complainant had a close relationship with the family that extended outside work hours. There was evidence the employee had attended social outings with the family, including the son, and was generally considered as part of the family. There was, however, evidence that there was subsequently a falling-out between the complainant and the son. Following this, at a conference with accommodation arranged by the employer, the son and the complainant shared a two-bedroom serviced apartment. During one night at the conference, the son sexually harassed the complainant.

During the trial the respondents sought to disassociate the events that occurred in the apartment at the conference as being personal rather than work-related. The Inquiry Commissioner did not agree at first instance, nor did the Federal Court on appeal. The Federal Court found that although the employees were away from their normal workplace, the incident constituted sexual harassment of one employee by a fellow employee.

The Federal Court noted that at the time they were both fellow employees, the apartment was being shared in the course of their common employment, the apartment had been provided to them by the employer for the purpose of attending a conference and applying Smith v The Christchurch Press Ltd,[3] it could not be suggested “that their common employment was unrelated, or merely incidental” to the sexual harassment that occurred at the conference.[4]

British anti-discrimination cases take a similar approach to the Australian cases.

In Jones v Tower Boot Co Ltd, the English Court of Appeal held:

“The tribunals are free, and indeed bound, to interpret the ordinary and readily understandable words ‘in the course of employment’ in the sense in which every layman would understand them ... The application of the phrase will be a question of fact for each industrial tribunal to resolve, in the light of the circumstances presented to it ... ” .[5]

In Chief Constable of the Lincolnshire Police v Stubbs & Ors,[6] the British Employment Appeal Tribunal considered a case of sex discrimination and sexual harassment brought by a policewoman in relation to the conduct of a co-worker towards her. The harassment occurred on two occasions, both after-hours events – at a pub after work and at an organised leaving party. The Tribunal held that the conduct came within the definition of being in the course of employment.[7]

Employment law

The issue of what constitutes conduct in the course of employment is one which has frequently arisen in the context of unfair dismissal claims and in disciplinary tribunals in cases in which an employee has challenged the employer’s actions to demote or terminate his or her employment.

These cases involve a balance between the right of employees to have a private life over which their employer has no jurisdiction and after-hours conduct of an employee which will adversely affect the employer.

The cases indicate that an employee can be disciplined for after-hours conduct providing:

  • there is a direct link between the after-hours conduct and the employee’s employment; and
  • the conduct in question has a serious and significant effect on the workplace or it damages the employer’s interests.

In some cases, it will be enough if the conduct is incompatible with the employee’s duties as an employee, for instance if an employee of a child-care centre is convicted of paedophilia.

The different approach in these cases, compared with the anti-discrimination cases, may be due to the different policies behind the legislation. It may also partly reflect the lack of a definition of “workplace” in the relevant employment legislation compared with the anti-discrimination legislation.

The Workplace Relations Act 1996 (Cth) does not define “workplace”. However, the definition of “workplace” in anti-discrimination legislation is wide. For example, s87(3) of the Equal Opportunity Act 1995 (Vic) defines a “workplace” in relation to the sexual harassment provisions as:

“any place where a person attends for the purpose of carrying out any functions in relation to his or her employment, occupation, business, trade or profession and need not be a person’s principal place of business or employment”.

Employment cases

The case of Smith v The Christchurch Press Ltd,[8] decided by the Court of Appeal in New Zealand, is directly on point. In that case, an employee (Smith) invited his co-worker (S) to have lunch with him. S agreed. Smith then drove S to his house, which S did not anticipate. Smith then brought out some lunch and alcohol. He then invited S into his bedroom and massaged her neck. A sexual assault followed. When Smith released S, she requested that he take her back to work. Smith did so and she agreed to Smith’s suggestion to keep the incident quiet. However, S later reported the incident and after an investigation Smith was dismissed. Smith then brought proceedings against his employer for wrongful dismissal. He argued that the behaviour complained of occurred away from the workplace in the employees’ own time and was unrelated to his employment.

The Court of Appeal agreed with Smith’s counsel that the categories of cases in which an employer can be said to have a legitimate interest in conduct outside the workplace must be very limited in the interests of restricting intrusion into employees’ private lives. However, it found that the facts in this case provided ample basis for the trial judge’s conclusion that there was a sufficient nexus between the employee’s conduct and his employment.

The Court of Appeal stated that there must be a clear relationship between the conduct and the employment. The Court held:

“It is not so much a question of where the conduct occurs but rather its impact or potential impact on the employer’s business, whether that is because the business may be damaged in some way; because the conduct is incompatible with the proper discharge of the employees’ duties; because it impacts upon the employer’s obligations to other employees; or for any other reason it undermines the trust and confidence necessary between employer and employee”.[9]

This case was applied by the Federal Court of Australia in the case of Leslie v Graham discussed above.

In McManus v Scott Charlton,[10] Finn J of the Federal Court limited an employer’s right to give an employee a direction to prevent a repetition of out-of-hours sexual harassment of a co-employee to circumstances where:

  • the harassment was a consequence of the relationship of the parties as co-workers, i.e. employment-related; and
  • the harassment has had and continues to have substantial and adverse effects on the workplace relations, workplace performance and/or efficient equitable and proper conduct of the employer’s business because of the proximity of the harasser and the harassed person in the workplace.

The issue of out-of-hours conduct has been considered in the context of workers dismissed for sexual harassment or stalking of co-workers.[11]

In Graincorp Operations Ltd v Markham, the Full Bench of the Australian Industrial Relations Commission (AIRC) found that the applicant had sexually harassed a co-worker at a hotel they were staying at during a training conference.[12] The employer paid for the conference and so placed the employees “in a situation of proximity to each other”. The employer also paid for dinner and some alcohol on the evening of the harassment. The AIRC held that the harassment was not of a private nature. It allowed the employer’s appeal and dismissed the unfair dismissal claim brought by the employee who had been dismissed because of the harassment.

In another unfair dismissal case, Rose v Telstra,[13] the AIRC considered circumstances in which two colleagues who had previously resided together had a fight after returning to a hotel from a nightclub. At the time they were both in receipt of travelling allowances from Telstra. However, neither was in Telstra uniform or on call. Both were drunk at the time. The fight resulted in one of the employees who had instigated the fight being stabbed and the other being imprisoned for assault. Telstra dismissed the employee who had been injured. The imprisoned employee resigned from Telstra.

The dismissed employee successfully challenged his dismissal. Vice-president Ross found that the applicant’s conduct was not sufficiently connected to his employment. The incident was not in public, the men were not in uniform or on call. There was no evidence from Telstra that the event had damaged their interests.[14]

Rose v Telstra was applied by the Tasmanian Industrial Commission in Gunston v Commissioner of Police.[15] In that case, it was ordered that a drunken off-duty police sergeant who had performed sexual acts in the coffee lounge of a hotel should be re-employed. The hotel was in the process of closing at the time, the coffee lounge had the lights turned off and had no other patrons in it, nor was it observable from the hotel foyer, and so the likelihood of Mr Gunston being observed was low. The AIRC noted that while police officers must maintain a high standard in their off-duty activities, and Mr Gunston’s conduct was “stupid behaviour, which demanded severe disciplinary action”, it did not warrant dismissal.

In Cassel v Commissioner of Police,[16] the NSW Industrial Commission held that the employer’s sexual harassment policy could cover conduct in a hotel at a social gathering with work colleagues.[17] Peterson J noted that to limit it to conduct in the workplace “would render it potentially useless”. Peterson J stated:

“It is obvious that the workplace is intended to be one in which relationships between staff are not affected by conduct between or about colleagues which will have a detrimental effect upon the workplace. The policy is so directed and in my view embraces relevant conduct outside the workplace which has the effect of transgressing the policy”.

These cases illustrate that an employer can be placed in a quandary regarding after-hours conduct. On the one hand, an employer may wish to discipline an employee for such conduct. On the other hand, an employer may wish to argue the conduct is not work-related so that it is not liable for such conduct. Employees may find it difficult to know when after-hours conduct is work-related. This paper has attempted to provide some guidelines in relation to employer liability for out of hours conduct that may amount to discriminatory conduct, and for when an employee may be disciplined for out-of-hours conduct.[18]

MARY-JANE IERODIACONOU is a senior associate in the industrial relations group at Blake Dawson Waldron, is an accredited mediator and an experienced workplace trainer. The author wishes to acknowledge and thank Robin Crockett and Robyn Sweet for their research assistance, and Sarah Rey for her helpful comments.
This article does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.

[1] This article does not consider other ways in which an employer may be liable for after-hours conduct, such as under workers’ compensation legislation.

[2] Unreported, Federal Court of Australia, 4 February 2002, Branson J

[3] [2001] 1 NZLR 407.

[4] Note 2 above, at [71].

[5] [1997] 2 All ER 406 at 416. This case was followed in Sidhu v Aerospace Composite Technology [2000] EWCA 183 (26 May 2000).

[6] [1999] IRLR 81.

[7] See also Dobrovsak v AR Jamieson Pty Ltd & Anor (1996) EOC 92-794 and Shellharbour Golf Club Ltd v Wheeler [1999] 46 NSWLR 253 where employers were held vicariously responsible for sexual harassment that occurred at or after the employer’s Christmas party.

[8] Note 3 above.

[9] Note 3 above, at 413.

[10] (1996) 70 FCR 16; applied in Applicant v Respondent (1998) EOC 92-937.

[11] Heard v Australia Post (AIRC, R1250, 2 February 1999); Graincorp Operations Ltd v Markham (2003) EOC 93-250; Civil Service of Western Australia Inc v Director General of Department for Community Development (unreported, Western Australian Supreme Court of Appeal, Anderson, Parker and Hasluck JJ).

[12] Note 11 above.

[13] (1998) 45 AILR 3-966.

[14] See also Mills v E&S Trading Co (Discounts) Pty Ltd (AIRC, PR 917839, 17 May 2002) in which DP Hamilton dismissed a claim for unfair dismissal brought by an employee involved in an altercation one morning before work but outside the employer’s premises; Australian Workers Union, Tasmanian Branch v Adelaide Mushrooms Nominees Pty Ltd trading as Tasmanian Mushrooms (Tasmanian Industrial Commission, T10691 of 2003, 5 September 2003) in which it was held the employer was entitled to discipline an employee who had pleaded guilty to criminal charges for the assault of a co-worker while both were en route to work; and Fraser v Imparja Television Pty Ltd (AIRC, PR 926026, 20 December 2002) in which the AIRC ordered reinstatement of an employee who had pleaded guilty to criminal charges for an out-of-hours assault and who had resigned after being demoted.

[15] Tasmanian Industrial Commission, T9986 of 2002, 27 June 2002, upheld on appeal (Tasmanian Industrial Commission, T10313 of 2002, T10316 of 2002, 13 February 2003). The parties eventually settled the matter and the AIRC’s order for re-employment was rescinded (Tasmanian Industrial Commission, T10313 of 2002, T10316 of 2002, 8 July 2003).

[16] (2003) EOC 93-272.

[17] See also Mason v Boyne Smelters Ltd, AIRC, R7701, 20 August 1999 and May v Boyne Smelters Ltd, AIRC, R7793 which deal with conduct at the work Christmas party.

[18] The author wishes to acknowledge her use of the following references: McCallum, R, “After hours conduct, dismissals and the Workplace Relations Act” (1999) February The Queensland Lawyer 121; McCallum, R, Employer Controls over Private Life, 2000, University of NSW Press; Catanzariti, J, “Industrial relations: not so merry work functions” (2002) 40 NSW Law Society Journal 48; Spry, M, “After hours conduct, dismissals and the Workplace Relations Act 1996 (Cth)” (1999) 19(4) The Queensland Lawyer 121.


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