To avoid unfair dismissal exposure when dismissing an employee for conduct outside work hours, you must be able to show sufficient connection between the conduct and the employee’s employment. That connection is established if a reasonable person would conclude the conduct causes, or is likely to cause, serious damage to the employment relationship, or is incompatible with the employee's duty as an employee.

Whether the connection is established in each case depends on:

• the nature of the conduct;
• the nature of the employment in the context of the employer’s business; and
• the effect of the conduct on the business and its employees.

Three 2024 decisions show that a variety of different factors can operate to make dismissal for out-of-hours conduct unfair:

1. In Pawelczyk v Commonwealth Bank of Australia (2024), the Fair Work Commission (FWC) considered the conduct of an employee who barraged his manager with more than 50 abusive text messages over 3 days and mostly outside of work hours. The FWC ruled the employee’s out-of-hours conduct had sufficient connection with his employment to provide a valid reason for dismissal, noting the conduct was “sustained, hostile and at times threatening”.
2. In Macnish v Virgin Airlines Australia Pty Ltd (2024), the FWC considered the conduct of a flight attendant who drank a glass of prosecco within 8 hours of starting a shift. The FWC found this conduct did not breach the employer’s drugs and alcohol policy, and as a result, the employee had been unfairly dismissed. The FWC ordered the employee be reinstated.
3. In Roche v Trustee for The Dolphin Hotel Unit Trust (2024), the FWC found that a supervisory employee’s criticism of management in a social media group chat had “incite[d] a negative and combative environment among the team”, which, along with performance issues, provided a valid basis for her dismissal. The FWC ruled the chat group was clearly related to working at the employer’s business and was not a private group chat.

These cases highlight that when the conduct harms the fabric of working relationships, it will be difficult to argue there is not a valid reason for dismissal. However, a policy breach may not in all cases justify dismissal. For comprehensive guidance, consult the Employment Law Handbook chapter, Out-of-hours conduct.

latest Health & safety bulletin

Worker fatally struck by a truck after company's failure to enforce safety procedures
An asphalt-paving company has been fined $450,000 in the NSW District Court after it pleaded guilty to failing to comply with its primary duty of care ...

Read more