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Friday Workplace Briefing

So, Yes It Is Christmas – Out of hours conduct, party, party, party

As the Christmas holiday season approaches and celebrations are underway, we must be conscious of our out of hours conduct.

In this week’s Friday Workplace Briefing, Andrew Douglas and Nina Hoang will be discussing how out of hours conduct is understood in recent case law, when that conduct can affect your employment and how employers should address it.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: Delivery driver. Okay. Not getting on terribly well with his manager. His manager sends over 200 spam messages late at night. Really rude messages, dumb messages.

Nina Hoang: Give the context, Andrew. He’s sending this to this guy after he’s been injured as a delivery driver and filed a workers’ complaint. So he’s off. He’s off recovering from his injury and his manager is subjecting him to 200 incessant harassing messages of various kinds, including some that are inappropriately referencing self harm and things like that.

Andrew Douglas: Yeah. And clearly the manager doesn’t believe the claim. I think we can assume that that’s the correct claim. So whatever reason he had, and nobody’s going to try and guess that, I’ve got a few guesses, but I’m not going to issue them on live to air. He keeps sending these crazy messages and memes and things on it, which are offensive and foolish, destructive.

Question here is, Amy says, well, I’ve been constructively dismissed. So the issue is, well, did the manager have the power to dismiss him? Did he have the authority? And it would not surprise you at all to learn the Fair Work Commissioner reached beyond the obvious to say, well, he clearly had extensible authority. He spoke for and represented the business. And by doing this, he showed that there was no belief in his capacity to work and no belief in his continuation of employment, therefore, they accepted constructive dismissal.

All right. Now, why are we telling you about this case? The law is not magic in this case. Why are we telling you about this case? I guess is because this is the classic Rose and Telstra issue. You don’t normally see it in this way because it’s the manager’s behaviour who could be dismissed in this case.

Nina Hoang: Yeah, it’s usually the opposite.

Andrew Douglas: Yeah. And we’re talking about the constructive dismissal of the person who’s the subject of it. But Rose and Telstra is a really simple case. And Rose and Telstra has three, and I’m going to read them because I always mix them up, okay? So just hang in with me here. I’ll read them as long as I can find them. Here they are.

The conduct must be such that viewed objectively, there’s likely to cause serious damage to the relationship between the employer and the employee. This is out of work behaviour, when you can discipline someone. The conduct damages the employer’s interests or the conduct is incompatible with the employee’s duty as an employer.

So what I want to take you to though is Hunt’s case, which I think is probably the best one that illustrates all three. So Hunt was a case of an employee at a Aboriginal cooperative whose job it was to educate young men around the misuse of alcohol and violence towards women.

And on one Friday night he drank too much, came home, beat his girlfriend up or wife up and was locked up and they terminated his employment.

So let’s go back to those tests.

Now, the cooperative said you’re sacked. And they said, yes, it was out of work, but viewed objectively, is it likely to cause serious damage to the relationship between the employer and the employee?

Nina Hoang: Yes.

Andrew Douglas: Absolutely. A person sees with such a delicate thing that goes to the heart of the organisation and to the criticisms of indigenous people in the community, yes, it does. So there’s one breach. That’s enough. Okay.

Nina Hoang: Yeah.

Andrew Douglas: The conduct damages the employer’s interest. Yes it does. It’s subject to public disdain and reputational damage.

Nina Hoang: And probably has weakened their confidence in that particular programme that he was running.

Andrew Douglas: Which is a critical programme. That’s right. And the conduct is incompatible with the employee’s duties as an employee. He can’t come back and educate people when he’s just gone and done it. So what we wanted to talk about today is, it is Christmas, it’s coming. Lots of things are coming, but Christmas is definitely coming. And what we know is, from lawyers, we see incredibly bad behaviour in the last-Nina Hoang:

Nina Hoang: It’s the silly season for a reason.

Andrew Douglas: Yeah. And when we come back in January, we’re greeted by the disciplinary actions that are going to be taken. Now, that keeps me in gainful employment over January, and I applaud that.

But what I want people to understand is that 25 years ago when people behaved badly, and it was a he said, you said, that’s what it was. Whereas now, we have mobile phones with people taping, filming.

When we’re presented with these cases now, we’re commonly presented with a small video of some behaviour that was occurring with voice of what someone said or did. Well, I think that’s good, by the way. I’m happy with that because that’s evidence, makes my life a lot easier. But the nature of behaviour in the last 20 years has not changed.

Nina Hoang: No.

Andrew Douglas: And that’s what disturbs me as a group of people that we’re still doing this dumb stuff. And there’s been firms that I’ve been in where I’ve said to all my staff, look, I leave at nine o’clock before people start to drink. And I’d strongly advise you to do the same thing. And most of the female staff I had would follow me out the door at that time.

Why is Rose and Telstra important as a case? Because it talks of out of work conduct. So what’s in work conduct? In work conduct is a Christmas party that is arranged by work. Therefore, safety applies to it. Workers’ compensation, discrimination, employment safety. All apply to it.

Nina and I go for a drink afterwards and I pay for that drink as the owner. Definitely still work, okay? Not harder on the safety law to get it to a workplace, but in every other type of law, definitely work.

But as I’m driving home, when I post a message on Facebook, that’s out of work.

Nina Hoang: Yeah, or if you’re driving home drunk. So that’s another common one.

Andrew Douglas: Yeah.

Nina Hoang: Where they’ve gone home from the work function and they’re like two times over the limit, out of work, but then it definitely connects back to the workplace.

Andrew Douglas: Yeah. And what we see, and unfortunately, I’ve seen at every law firm, is there are Facebook posts that go on describing the behaviour of people that take photographs of people in awkward times and then distribute them. All of that material is out of work behaviour. And if it breaches any one of those rules. So if I say something awful about Nina in Facebook after I go home, the third limb about the employer employee responsibilities, how do I come in the next day and be Nina’s boss when I’ve said something which might go to a group of people who are in my privacy setting? Doesn’t go to the whole world.

Can I say only about three percent of people have full privacy settings on their social media. So most people, it does go more broadly, but in my group as fellow employees, I’m in real trouble.

Under O’Keeffe’s case, as long as I can be identified as an employee, in that business, I am connected to Rose and Telstra. So as long as that is identified.

Now, a subsequent case, which name is going to elude me just for the moment, but as long as what I say can hurt somebody who is employed and make work unsafe for those people, then once again, that connects to work. So either I’m identified or the nature of my behaviour affects someone who will come to work in relation to me, that comes into that out of work behaviour.

Now, on workers’ compensation land, it’s even more complex because what it shows is in the interval cases, if in any way I as the employer accept or permit the conduct that occurs during that time when you’re not at work. So again, Nina and I go to the Christmas party, Nina says to me, look, I’m going to take the young staff out to a nightclub, and I go, yeah, okay, the fact that that’s at two in the morning, I’ve permitted it. So if something bad happens during that period of time, the workers–

Nina Hoang: Vicariously liable as well.

Andrew Douglas: Yeah, that’s right. Workers’ compensation will say that was a work… Can you see how simple it is not to bugger this up?

Nina Hoang: Yeah.

Andrew Douglas: And that is to be really clear around the rules of what is a work engagement. But to keep reminding people about their obligations, about how they behave to each other, either inside or out of work and the reputation of the organisation.

Nina Hoang: I think that’s a big one because a lot of times people think, oh, I’ve got the policies in place, people have been trained, so they should know. But if you’re not reiterating that behaviour, particularly as you head into Christmas season where people are having work functions and things like that, if you’re not giving them the reminders, you’re exposing yourself to liability.

Andrew Douglas: And remember that people are starting to drop their guard.

Nina Hoang: Yeah, they’re so keen for holidays.

Andrew Douglas: Yeah. Like if you’re like us, we just want them to happen. You know, like you’re there. So some of the ways of rule compliance that I had in October, I’m starting to feel the pressure just to let go.

So what we want you to do is this.

The law is absolutely clear about things what are connected to work, but the law is now increasingly clear about what is not connected to work and which you’re liable for. And that’s why I gave you Hunt’s case.

Does it affect the reputation of the organisation? Does it affect your relationship with the employer? Does it affect your inter-employee relationship? Does any of those things that out of work conduct, a person can be disciplined for it. So please, go back to people. And Jurecek,, I think that’s the name, I guess.

Nina Hoang: Yep, exactly.

Andrew Douglas: It tells you quite clearly in the investigative process, we’re allowed to look at people’s Facebook sites, we’re allowed to do those things no matter what the privacy settings. I used to have, back in the old days when mobile phones first came out, do not drink and text. My view is now do not drink and message. The moment you’ve had a drink, put your mobile phone down and say, I’m not sending any message about any person, I’m not taking any photograph, I’m just going to enjoy the occasion.

Nina Hoang: Yeah, good advice.

Andrew Douglas: Okay, let’s go on now to our–

Nina Hoang: Case study.

Andrew Douglas: Complex case study today, by the way.

Nina Hoang: Yeah.

Ian was tired of it. Gerald, his ICT manager was driving him mad. Ian was the COO for InPlant. InPlant was a digital business that invested in futures of farm cropping around the world. Five years ago, it was a clever startup with a cunning plan. But the developers took the mechanical view of weather and farming commodities use at the startup and created a meteorological, geographical and market algorithm that allowed a successful method of buying farming crop futures based on crop scarcity and market prices in the following year.

I just want to make it clear that your repeated behaviour of this is clearly bullying and all these people are-

Andrew Douglas: Yeah, okay.

Nina Hoang: InPlant now employed over 500 people. The heart of the business was the ICT department under Gerald. It was not the designer part of IT, just the infrastructure. And it was the infrastructure that supported the hundreds of thousands of clients who invested. For three months, Ian had heard rumours of Gerald’s philandering with young women in his team. Then on 17th of October, Janelle, HR partner for ICT visited Ian in his office and told him the story of Gerald’s seduction of his new PA, Kinsell.

Ian asked Janelle if Kinsell was safe and happy. Janelle said she was, but didn’t know that Ian had a wife, several kids and sees several other women in his team and others outside of his team. How does he have the time? When she does it will blow up.

Nina Hoang: Digital world.

Nina Hoang: God.

Three days later, Janelle rang Ian and said it had turned to crap. Kinsell found out about the other women, is deeply hurt and wants to move away from Gerald. Janelle said that she had an opening for a pair to join Jen who worked in Corporate Advisory and Kinsell will fill in for a while until the dust settles.

Janelle said the problem is that Gerald can’t accept that it is over and keeps messaging Kinsell asking to talk and heal it. She says that Gerald says in the text that he wants her and no one else. Ian arranges a meeting with Gerald, he explains the relationship breaches the rule around disclosure relationships with key personnel. Ian is registered as a key personnel. His messages after the breakup constitute unwelcome communication amounting to sexual harassment, and he wants an undertaking that it will stop. Gerald says nothing.

Shortly after the meeting, Gerald sends a message to Kinsell saying, “How could she put me in with the bosses? You know I love you and would do anything. Why are you trying to hurt me?” Janelle forwarded the message to Ian with the comment, “I really need your help.” Ian received a message from Janelle when he was having executive drinks at the Club of United Business in Collins Street.

Andrew Douglas: That’s Burris’s new private club.

Nina Hoang: He had some possibly too much aged Macallum Single Malt. It’s 9:00 PM and he was dog tired. He was totally sick and tired of Gerald. He sent 15 messages over the next hour and a half, including the following GIF.

Nina Hoang: Thank you.

Nina Hoang: GIF. If you don’t get it… Consent: If you don’t get it, you don’t get it. At 10:45 PM, Gerald messaged back, “Stop this barrage of abuse. You know nothing about what is happening. I really don’t feel safe.” Ian responded 10 minutes later, “Imagine how she feels. Have you spoken to your wife or should I?” Gerald sent the thread of messages to Kinsell and the text, “See what you started?”

Wow. This is a lot of moving parts.

Andrew Douglas: Yeah. Look, I wanted to do this, and part of the reason I wanted to do it, I’m going to do this reasonably quickly, it’s a long programme today, is this is pretty much the sort of stuff we see in January. Okay? Where it just goes crazy.

So what I want you to think about is, well, what are the actions? What can Kinsell say? Well, Kinsel can say, look, Gerald is effectively my boss and his behaviour is unquestionably sexual harassment and it makes me unsafe at work. So you’ve got safety issues, you’ve got sexual harassment issues. You’ve got sexual discrimination issues, an organisation that knows it and permits it. Kinsell’s got a great cause of action. It’s worth a lot of money.

Nina Hoang: Yeah, it doesn’t matter that she was in a consensual relationship before. Like the moment that the business knows that she no longer consents, and the moment that Gerald knows she non-consents, it becomes sexual harassment.

Andrew Douglas: Yeah, and by the way, love contracts are things that you can form for executives which require you to disclose relationships for key personnel. So the issues of conflict can be, particularly conflicts in sales and areas can be managed.

What about Ian? Well, Ian is the big boss. Ian’s comments that he made towards Gerald are constructive dismissal under Amey. The types of things which show you’re not welcome, you’re not trusted and I’m going to deal with you. So there’s an argument around that. Unquestionably, there’s huge workers’ comp risk that sits around the way Gerald is managed and there are–

Nina Hoang: Safety risks because he hasn’t actually addressed the problem. And he’s caused further psychological hazards to Gerald.

Andrew Douglas: Gerald’s in deep trouble.

Nina Hoang: Yeah.

Andrew Douglas: In every way you can imagine, Gerald’s in trouble. He’s in trouble under safety under section 25. He’s in trouble under discrimination law. He’s in trouble for victimisation, which means special damages running at him and aggravated damages. It’s a claim and–

Nina Hoang: He’s engaged in sexual harassment. He’s definitely breached Fair Work Act.

Andrew Douglas: Yeah. And InPlant is in trouble for all of them. And I just want you to understand, we put InPlant at the back because everything that a person does inside the organisation, unless you can show competence based training and understanding, goes directly to the liability of the organisation.

Nina Hoang: Yeah, it’s attributable.

Andrew Douglas: So if Kinsell is so distressed by this, she’d lose her life, workplace manslaughter is running at Ian, he’s an officer, it’s running at the organisation because of Ian, but whatever happens, this is all reckless.

Nina Hoang: Oh yeah. It would definitely meet reckless endangerment.

Andrew Douglas: So whether Kinsell dies or not, any serious injury that happened to her as a result of what had occurred, reckless endangerment under safety law would be there. But I just want to say, the risk here of Kinsell can’t work again, special damages in relation of lost earnings–

Nina Hoang: They’ll be huge.

Andrew Douglas: But we’ve got general damages of 120,000 to 150,000. This is a massive claim and this is a PA. Imagine if this person was a member of the executive.

Nina Hoang: And I think what will shuffle a lot of people is they’ll say, well, Ian was trying to help by doing that, but by doing not enough, he’s probably worse in this situation–

Andrew Douglas: That’s exactly right. And what Nina and I do whenever we get these claims is we download all emails and all phone traffic and what we see is what we just told you about. So I don’t want you to think this is something novel and made up.

Nina Hoang: It’s pretty common.

Andrew Douglas: It’s pretty common. Now look, it is Christmas coming, so we’re going to stop on time. Great to catch up again, Nina. Thanks very much.

Nina Hoang: Give it a thumbs up.

Andrew Douglas: See you later, guys. Bye bye.

Nina Hoang: Bye.

Check this next

Andrew Douglas and Nina Hoang will be discussing when an employer disparages an ex-employee: the consequences in defamation and reputational damage.