There Is No Such Thing As Being “Off The Clock”

By Brenton Allen, Lawyer, MST Lawyers

In an important ruling on out-of-hours conduct, the Fair Work Commission has upheld the dismissal of an employee who shared a 10-second pornographic video via Facebook with 19 male and female work colleagues.

The employee sent the video from his home on a Tuesday evening after attending a pub and drinking approximately ‘6 schooners of beer’.

After investigating the incident, the employer dismissed the employee for serious and wilful misconduct including breach of company policy.

The employee filed an unfair dismissal claim seeking reinstatement as a primary remedy. In support, the employee argued that there was no valid reason for his dismissal, as, amongst other things, the allegation of misconduct related to an incident that did not occur in the workplace.

In dismissing the employee’s application, Commissioner McKenna held that:

“This [was] not a case of an employer seeking to intrude too far into the private lives of employees or… attempting to exercise supervision over the private activities of employees. The respondent was not attempting to regulate the appropriateness of an employee’s private use of social media; it was trying to respond to what was understood to be the dissemination of pornography to employees – and that considered against the background of concern arising in the context of the matters it was endeavouring to convey as to its values and approach to matters addressed in its policies and code, including potential sexual harassment of female employees.”

While each case of alleged misconduct should be considered on its own individual facts and merits, this decision provides some useful guidance on the interaction between the workplace and private activities of employees.

For more information please contact the Employment Law team at MST Lawyers by email or call us on +61 3 8540 0200.