12 October 2022
10 min read
#Government, #Workplace Relations & Safety
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Where the boundary is between an individual’s work and private life is an issue that has been examined by the courts and the Fair Work Commission (and its predecessors) over a number of years. While the distinction between the two spheres of life is clearer than it was, there is still no ‘bright line’ or a definitive test as to when an individual’s conduct ‘after hours’ will fall within the scope of their employer’s required standards of behaviour.
Interestingly, there have been a number of contrasting cases where out of hours conduct involving alleged sexual harassment have been found to have, and also not to have, the requisite connection to the workplace to allow an employer to sanction the perpetrator of the complained behaviour. Some examples are as follows:
In this article, we discuss the findings of the Fair Work Commission in the recent case of Keron v Westpac Banking Corporation [2022] FWC 221 (Keron v Westpac) with regard to where the ‘line’ in between work and private is, in the context of the relevant parts of the Australian Public Service (APS) Code of Conduct (Code of Conduct).
Subsection 13(3) of the Code of Conduct is framed in terms of requiring APS employees to act with respect and courtesy and without harassment when acting “in connection with employment”, stating that:
“(3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment.”
The Australian Public Service Commission (APSC) provides the following relevant guidance in its publication, Handling Misconduct – A human resource manager’s guide, with regard to the meaning of “in connection with employment”:
“2.24. Some elements of the Code explicitly apply ‘in connection with employment’; in others, a connection is implied; while still others apply ‘at all times’. There is a limit to the extent to which agencies can take action in response to employees’ private behaviour—a reasonable connection is needed between the behaviour and the employee’s APS employment.
2.25. The term ‘in connection with employment’ is not confined to the performance of job-related tasks or other conduct in the course of employment. Employees are required to abide by the Code when engaged in activities outside work hours and away from the workplace where there is reasonable connection with their APS employment. This includes, for example, on work-related travel, during training, or at work social events such as Christmas parties.”
‘After hours’ conduct of an APS employee may therefore clearly be subject to action under the Code of Conduct, providing that there is a “reasonable connection is needed between the behaviour and the employee’s APS employment”.
As discussed above, the findings of the Commission in Keron v Westpac provide some guidance with regard to when the requirement for a reasonable connection between the relevant alleged misconduct and the employee’s employment will be met.
The Deputy President summarised the positions of the parties with regard to the issue of whether a sufficient connection to the workplace was present as follows [at paragraphs 202 and 203 of the decision]:
“Notwithstanding that the incidents occurred after the scheduled end of the Sundowner and outside of the workplace Westpac submit that there was a manifestly clear and unequivocal connection between Mr Keron’s conduct and his employment. Westpac rely on the decisions in Brown v Aristocrat Technologies Australia Pty Ltd[132],Rose v Telstra[133], Streeter v Telstra[134], Farquharson v Qantas[135], Graincorp Operations Limited v Markam[136] in support of this assertion.
Mr Keron submits that the conduct for which he was dismissed did not occur in the course of his employment and therefore cannot form a valid reason for his dismissal because there is no evidence that his conduct will impact on his capacity to perform his duties. He points out that he had no working relationship with either Ms Smith or Witness A and that neither are now employed by Westpac.”
The Deputy President acknowledged that out of hours behaviour must ordinarily have some work related connectivity and that only in exceptional circumstances will an employer have the right to extend its supervision to the private activities of its employees, noting in this respect [at paragraph 208] that:
“This is consistent with the position at common law where it is only in exceptional circumstances that an employer has the right to extend its supervision to the private activities of its employees. For example conduct outside of working hours even involving criminal offences does not, of itself, automatically justify dismissal.”
The Deputy President however ultimately concluded that the requisite level of ‘connectivity’ was met in respect of Mr Keron’s action in respect of incident one, when Mr Keron placed his hand in the middle part of a female colleague’s lower buttock and “in an intimate manner then moved his hand upwards towards her waist”.
In summary, the Deputy President’s primary reason for her conclusion in this respect was that Mr Keron and the female colleague were only at the location of the Sundowner, and socialising, because they had attended the workshop and the Sundowner in the course of their employment.
Consequently, it was held that this first incident was sufficiently proximate to the workplace and Mr Keron's employment, therefore forming a valid reason for his dismissal.
In coming to her decision the Deputy President observed that [see paragraphs 222 to 224 of the decision]:
“The Workshop ended at 4pm. The Sundowner was held at a different location to the Workshop. The Sundowner was not held in normal business hours and was not compulsory. Westpac employees attending the Workshop and Sundowner wore smart casual wear and not uniforms. There was no Westpac signage at the Sundowner to identify the event as being associated with Westpac.
The Sundowner was scheduled to conclude by 6:30pm. The bar tab was closed by 7pm. The number of Westpac employees at the Sundowner gradually diminished as the event wore on and by 7pm only a small number remained. By 9.45pm when Incident One occurred only 11 of the 160 employees who had attended the Workshop remained. These employees had been drinking and/or socialising for more than 5 hours since the conclusion of the Workshop and 3 hours since the conclusion of the company organised networking event.
Relevantly however they remained in the location of the Westpac organised Sundowner. They were only at this location in the company of each other as a consequence of their attendance at the Workshop and the Sundowner in the course of their employment. In particular Mr Keron and Witness A had no separate social connection and were only in The Camfield socialising because they had attended the Workshop and the Sundowner.”
The Deputy President also noted [at paragraphs 210 and 211] that:
“It is relevant to note that [complained of behaviour in relation to] Incident One occurred at the physical location at which the Sundowner occurred. Incident Two occurred approximately 1km away.
However, it is not necessary that the relevant behaviour occur at the same physical location as the workplace or work function in order for there to be a sufficient connection with the employment for the behaviour to justify dismissal.”
The Deputy President also particularly took into account [at paragraphs 204 and 205] that the provisions of the Westpac Discrimination, Harassment and Bullying Policy and its Sexual Harassment policy were clear that they may be applied to ‘out of hours’ conduct, noting [at paragraphs 204 and 205] that:
Relevantly the Discrimination, Harassment and Bullying Policy: “... applies wherever you are at work or when you are representing Westpac group in any way, such as at work-related functions, including seminars, conferences and social events.”
Relevantly the Sexual Harassment Policy provides that: “sexual harassment can occur at any time, in any situation where you interact with work colleagues, contractors, customers, clients and visitors. This includes working from other locations such as working from home, 'out-of-work' settings that are connected to work such as work-related conferences, work-related functions, work Christmas parties, business trips/meetings and field trips.”
The Deputy President found [at paragraph 227 and 228 ] in respect of incident two, a verbal abuse, in contrast to her findings in respect of incident one, that:
“In all the circumstances I am of the view that the period between the formal conclusion of the Sundowner and the departure of the group from The Camfield constituted an extension of the Sundowner and fell within the scope of at least the Sexual Harassment Policy and arguably within the scope of the Discrimination, Harassment and Bullying Policy.
The sundowner event and its subsequent extension by the small group of employees who stayed had a sufficient connection with Westpac and the workplace to justify the application of its workplace policies, including its policies with respect to sexual harassment. However, the verbal abuse of Ms Smith was not sufficiently connected given it was 4 hours after the sundowner, at a different location and neither were ‘wearing anything which might identify them as having any involvement with Westpac’.”
The key takeaways from the decision in Keron v Westpac are that it confirms and makes it clear that:
If you have any questions about an employment issue, please contact us below or send us your enquiry here.
Authors: Andrew Klein & James Beutler
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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