It’s now well accepted that the boundaries of the “workplace” are wide but, in practice, blurry.  Sometimes the precise location of the boundary is not overly important.  Other times, it is.

At the same time, over the past year employers have (or should have) been busy implementing changes within their business to ensure they are complying with their obligations around preventing hostile working environments, eliminating psychosocial hazards and the positive duty to eliminate sexual harassment, discrimination and victimisation.

It’s perhaps unsurprising then that when provided with information about private Facebook and messenger groups which involved current and former employees sharing inappropriate content (including of a sexual nature), the employer would not only seek to investigate those matters, but also take the action it considered appropriate (including termination of employment).

Although referring to the sharing of pornographic or other offensive material within a group which includes work colleagues as “abject stupidity”, a Full Bench of the Fair Work Commission has upheld a finding that the termination of an employee’s employment was unfair, including on the ground that the out of hours conduct was not sufficiently connected to the workplace for the employer to establish that it was work-related.

In making its decision, the Full Bench affirmed that an employee’s out of hours conduct can only constitute a valid reason for dismissal if:

• The conduct, when viewed objectively, is likely to cause serious damage to the relationship between the employer and employee; or
• the conduct damages the employer’s interests; or
• the conduct is incompatible with the employee’s duty as an employee.

To establish whether there is a sufficient connection to the employment, the Commission will typically look at matters such as:

• whether the out of hours conduct touches the employment, or the duties of the employee.
• where the out of hours conduct occurred.
• the circumstances in which the out of hours conduct occurred.
• the nature of the employment.
• the role and duties of the employee.
• the principal purpose of the employment.
• the nature of the employer’s business.
• the express and implied terms of the contract.
• the effect of the out of hours conduct on the employer’s business.
• the effect of the out of hours conduct on other employees of the employer.

While other decisions of the Commission have found that similar out of hours conduct can create the connection, here the Commission observed:

“In the present case, the Group existed independently of the workplace in the sense that there was a connection other than the members simply being work colleagues, who were all simply social media contacts of a person who sent an offensive post. … the members of the Group were consenting men who were voluntarily members and understood the type of content that would be shared within the Group. Further, in the present case, no complaint was made about the content of a post per se by any employee… While the material shared within the Group is offensive, pornographic, sexist, disparaging to women and racist, there is no evidence of any recipient being offended by it or sharing it outside the Group. While this might say much about the disposition of members of the Group, it does not constitute a connection to employment sufficient to constitute a valid reason for dismissal. Relevantly, we note that the material came to the attention of the [employer] because the daughter of a Group member used it in defence of her own conduct related issues at work, in circumstances where it is not clear whether the Group member consented to the material being used in this way.”

While employers may be left hypothesising whether the AHRC or Federal Court would adopt a similar approach when assessing whether an employer had met its positive duty under the Sex Discrimination Act, or whether such conduct gave rise to a Hostile Working Environment on the grounds of sex, the Full Bench’s decision has at least had the effect of reminding employers that the boundaries remain blurred, even dealing with conduct that is sexual in nature, and which might be observed to be “abject stupidity”.  Irrespective, employers are likely to err on the side of addressing the behaviour, rather than exposing themselves to a claim that includes allegations that it had become aware of the conduct, but did nothing.

Chris Oliver, Director