When does work life stop and private life start? - Dealing with inappropriate conduct outside work hours
by Neroli Holmes, Deputy Commissioner
first appeared in Balancing the Act Issue 25, Nov/Dec 2007, pp. 3-4.
Anti-discrimination legislation across Australia contains provisions that unless an employer has taken reasonable steps to prevent harassment and discrimination, they will be legally liable for the conduct of their employee who has done the harassing.
Workplace rules and codes of conduct can govern employees’ behaviour during working hours and in the workplace. Employers have the right to expect certain standards of behaviour of their employees, and they have the right to impose disciplinary sanctions, including in some cases dismissing an employee, when those standards of behaviour are transgressed.
The tricky issue confronting employers is how far outside normal working hours, and the usual workspace is an employer legally responsible for the conduct of their employees?
Let’s have a look at a few cases which could clarify some of these issues.
There is clear support that the conduct of staff at the staff Xmas Party is conduct within the course of a worker’s work, and that an employer can be vicariously liable for any harassment that occurs at the party. The employer has the right to discipline an employee for engaging in sexually harassing behaviour at a Xmas party.
In Thomas & Westpac Banking Corp (1995) EOC 92–742 a worker was dismissed following a serious act of
sexual harassment at the staff Xmas party. The bank had clear sexual harassment guidelines that outlined several possible disciplinary measures in the case of inappropriate behaviour. The Industrial Relations Court of Australia upheld the dismissal.
What about the party that kicks on after a Staff Xmas party has finished?
Unfortunately, the law in this area is less clear.
Some of you will be familiar with the case which recently received a lot of media attention, where Telstra was found to have unjustly sacked one of its young female employees due to her conduct following a belated Xmas Party (see Streeter vTelstra Corp Ltd (2007) AIRC 679
A function had been arranged, and a number of staff had booked a hotel room nearby where they planned to stay overnight. After the main function had finished three female staff checked into the room and went to sleep. The female employee in question, Ms S, who was very drunk, arrived shortly afterwards, and a number of incidents occurred during the evening involving her and two male Telstra employees. She was summarily dismissed following an investigation into her conduct. The reasons given for her termination were –
- She sexually harassed a fellow Telstra employee, Ms H, by being naked in the bath of the hotel room with other naked Telstra employees in Ms H’s presence,
- She failed to treat Ms H with respect, by being present whilst she went to the toilet,
- She sexually harassed Ms H, Ms B and Ms A, all 3 of whom were Telstra employees by engaging in sexual intercourse just metres from where they were with two different men on two occasions in their presence.
Ms S argued that Telstra did not have a valid reason to terminate her employment for the alleged serious misconduct, as there was no nexus to her employment. This argument was rejected by the Commissioner.
However, while he found that the conduct was inappropriate and inconsiderate, most of the conduct did not constitute sexual harassment as defined in the Sex Discrimination Act, or did so in a relatively marginal way.
Most of the behaviour occurred well away from the workplace, after rather than during a work function, in a hotel room that was booked and paid for privately. The AIRC found that in all the circumstances Ms S’s conduct was not so serious as to constitute a valid reason for terminating her employment.
What about conduct in the lunch hour?
A New Zealand case, Smith and Christchurch Press (2000) NZCA 341, has looked at the situation of two employees working together. The male employee asked the female employee if she’d like to have a few drinks at lunchtime. She accepted the offer. She was surprised when he collected her in his car and drove to his house.
After some sandwiches and drinks he suggested they move to the bedroom. She alleged she made it clear she did not wish to engage in sexual activity with him. She was embraced by him while he fondled her. They then returned to work.
The New Zealand Court of Appeal found that there was ample basis for the conclusion that was a sufficient nexus between the dismissed worker’s conduct and his employment to warrant his dismissal for sexual harassment. The Court said 'the conduct was between two present employees, arose out of the work situation and more importantly, had the potential to adversely affect the work environment.' The Court said it was irrelevant that the actual sexual conduct had occurred outside the workplace at lunchtime.
It constituted sexual harassment and it occurred in the course of employment.
The drinks after work cases
There are some contrasting decisions in this area, and you’d have to conclude the law is not as clear as you would wish on when an employer’s responsibility ceases for this type of after hours conduct.
Two cases have found after hours drinks are not conduct that occurs in the course or work, while one recent case has found this is work-related.
In a 2005 Queensland Industrial Relations Commission case, Johnson v Department of Justice (2005) QIRC 188 the conduct occurred on a Friday night outside the State Law Building in Brisbane. The conduct included a male officer from the Department of Justice placing a hand on a female colleague’s buttock, making a comment with sexual connotations to the same
colleague. The officer concerned admitted each of the allegations made by his female colleagues.
Commissioner Blades said that although the comments were vile, lewd and stupid they were made while the officer was substantially intoxicated, and the conduct was not serious enough to permit the employer to interfere in out of work behaviour.
Tichy v Department of Justice – Victoria(2005), also found after hours drinks were private in nature and
were not employment-related. In the case of NSW Attorney-General Department v Miller (2007) NSWIR Comm 33, however, the NSW IRC did find sexual harassment by a supervisor of several of his staff at a hotel out of work hours was incompatible with his duty as an employee.
Attendance at conferences
These cases take a fairly consistent approach.
A number of cases show that where employees were attending conferences, and were staying in accommodation paid for by the employer, employees who 'after hours' sexually harassed another colleague also attending the conference were found to have been doing so 'in connection with work'.
Employees are at a conference being paid for by their employers, and are put in a situation of proximity to each other as a result of this factor.
In these situations, employers have been found to have acted reasonably in dismissing the harassing employees. Employers have also been found to be vicariously liable for their employee’s harassing conduct, and ordered to pay damages (see Markharm v Graincorp (2002) AIRC 1318 and Leslie v Graham (2002)FCA 32)
In relation to staff accommodation, a case where a male employee, entered uninvited , a female employee’s room at about 3am and engaged in sexual advances or requests for sexual favours, the Federal Court held the conduct occurred in accommodation occupied because of their common employment. It could not be said the common employment was unrelated or merely incidental to the sexual harassment.
The accommodation was provided by the employer. The employee’s rooms were in close proximity to each other and they were accessible. The conditions in part created an opportunity in which the conduct could occur. It was 'in connection with' the employment, and the employer was vicariously liable. The female employee was awarded damages (see South Pacific
Resort v Trainer (2005) FCAFC130).
Unsolicited phone calls after work
A case McManus v Scot Charlton (1996) 904 FCA 1, involved a federal public servant, whose superiors had
ordered him to desist in making out of hours telephone calls that were unwelcome and sexually harassing to the home of a fellow female employee. Mr McManus challenged the legality of the order, saying it was not work related conduct. The Federal Court upheld the employer’s right to make the order.
To sum up:
The expression ‘in the course of work’ in the context of anti-discrimination legislation has a broad meaning and is one of practical application. The acts have to be in some way related to or associated with the work or employment.
Overall Guiding Principles
Recent cases show that out of work conduct can become the employer’s business and responsibility if the harassment –
- can reasonably be said to be a consequence of the relationship of the parties as co-employees (that is it is employment related); and
- the harassment has had and continues to have substantial and adverse effects on workplace relations and workplace performance because of the proximity of the harasser and the harassed person in the workplace.
Suggestions for Employers
Prevention is the best strategy:
- put in place clear codes of conduct and equal opportunity policies
- ensure the workplace policy on appropriate behaviour is kept up to date and implemented
- train existing and new staff on appropriate behaviour in the workplace
- train supervisors and managers and regularly update their knowledge in discrimination and harassment law.
If harassment occurs:
- have in place a process to deal with complaints quickly, privately and seriously
- seek expert advice, especially if the harassing behaviour occurs out of hours
- ensure the discipline is proportionate to the seriousness of the conduct (dismissal is not always the appropriate or
only disciplinary option that should be pursued). Consider issuing warnings, ordering counseling, requiring closer supervision
of the offending employee, transferring the employee or demoting the employee permanently or for a period of time
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