As a rule, conduct by an employee out of work hours does not justify disciplinary action unless there is a material connection between the conduct and damage to the employer.

Scenarios where an employee’s off duty conduct gives rise to employment concerns include:

Bringing the employer into disrepute; the employee acting in a way that is fundamentally inconsistent with an organisations’ values or purpose; where clients refuse to deal with an employee as a result of their off duty conduct; off duty conduct that involves serious misconduct; a serious breach of the organisations’ rules or policies, as recorded in the applicable employment agreement.

Employers are wise to introduce a policy addressing the expectations on employees both at work and when off duty. This policy should inform employees of the consequences of their off duty actions. Being clear about what is required reduces problems.

With regard to addressing an employee’s undesirable off duty actions, the onus is on the employer to demonstrate that discipline or termination is justified. An employer must act fairly and reasonably during any process.  In summary an employer is able to discipline and terminate employees for behaviour that occurs out of work hours, but a fair and correct process must be followed, and there must be a connection between the employee’s conduct and damage to the employer.

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This article is intended as a point of reference and should not be relied on as a substitute for professional advice. Specialist advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this article.