Where an employer is confronted with ‘bad behaviour’ by an employee, such as an act of misconduct, criminal activity or inappropriate behaviour that has occurred outside working hours and place of employment, there must be a clear link between the employee’s out of hours behaviour and their employment.
In Telstra v Rose  AIRC 1592, the Australian Industrial Relations Commission held that an employer can only discipline an employee for conduct engaged in outside their working hours, where the conduct was so serious that it has adversely affected: the contractual ‘workplace relationship’ between an employee and an employer. Therefore an employee’s conduct that damages their employer’s interests; and/or is incompatible with the employee’s duty as an employee, may provide a contractual right at common law for the employer to discipline or dismiss the employee,
Nowadays, many employees are increasingly working in various work environments, and the boundary between work and private life can be less clearly defined than it has been in the past. It can be legally advantageous for employers to have a code-of-conduct and a social media policy that clearly explains what will and will not be considered acceptable behaviour by their employees. Such a policy may also help protect employees to understand what would be considered a breach of their obligations as employees.
AZ Legal can advise about such a policy.