Out-of-hours conduct — when is it a workplace issue?

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By Rick Catanzariti and Carly Traeger

The line between conduct that may be said to have taken place within or outside the workplace is often quite blurry. While the conduct of an employee in any part of their life has the potential to affect the reputation of their employer, at what point does their out-of-hours conduct constitute a workplace issue?

A valid reason for dismissal as a consequence of an employee’s misconduct may exist if there is a connection between the out-of-hours misconduct and the employment. In the seminal case of Rose v Telstra, it was held that such a connection will arise when the employee’s misconduct is so serious it indicates that the employment contract simply cannot continue.

On the other hand, employers may also be vicariously liable for the out-of-hours misconduct of their employees in circumstances where complaints are made under anti-discrimination law…

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