If employers take only one thing out of the sacking of one of Australia’s best rugby players it should be this – in certain circumstances, an employer does have an interest, and the right to be interested, in an employee’s behaviour outside of the workplace.
This is not new, but increasingly relevant in ever changing workplaces where the line between work life and personal life is blurred. This is due to rapidly changing technology, and the demand of the younger workforce to have the ability to work flexibly. In legal terms, the nexus between the workplace and an employee’s actions outside of the workplace is no longer as clear cut as it used to be.
With flexibility and technology comes responsibility. And employees can, to a reasonable extent, be expected not to do anything in their personal time or personal life that is contradictory with their employer’s brand, values, and code of conduct. This will include how they behave and interact with others both in the real world and the virtual one. Sometimes such behaviour is obvious – explicitly disparaging remarks about the employer posted on the employee’s social media; an employee behaving in an offensive way outside of work time but in work uniform; a senior employee engaging in illegal activity which results in negative publicity for the employer, even when such behaviour is entirely outside of work time or the workplace. These will all likely justify some form of disciplinary action, whether that be a warning or termination of employment.
However, often it is a fine line to walk in deciding whether actions or behaviour outside of the workplace will justify disciplinary action by the employer. To make it less grey, employers should turn their minds to their codes of conduct, house rules, and employment agreements, and ensure they are fit for purpose. Do they clearly set out the expectations of the employee both while at work, and while not at work? What about those senior employees who are representing the employer even when they are not working, are the expectations of the employer clear? And, as in the case of Israel Folau, when an employee does overstep the mark, but it doesn’t justify dismissal, the employer should be absolutely clear, in writing, as to the expectations going forward. That way, if the employee again fails to respect those boundaries, the employer has reasonable grounds to terminate their employment.
In this case, in my opinion, Rugby Australia got it right.
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