Out of hours activity and the link to employment

So if work hours are 9.00  am to 5.00 pm does this mean that what people do between 5.00 and 9.00 is off limits to the scrutiny and sanction of employers?

The issue is coming into focus with the explosion of electronic communications.

The internet and social media allow people to have a very public soap box for their views and activities and for employers to be part of the audience, even if they weren’t specifically invited.

Further, the internet may have meant that pornography no longer has to be purchased publicly but the risk of exposure to enjoying it has moved to a new dimension.

As with every innovation it’s all good fun until someone gets hurt.

Take Ms Fitzgerald, a hairdresser who complained on Facebook about the amount of her Christmas bonus.  Sacked after her employer read the post, she had to endure a conciliation and a one day hearing to be told that her dismissal was unfair and be awarded $2,300.00 compensation: Fitzgerald v Dianna Smith T/as Escape Hair Design [2010] FWA 7358.

Or take Mr Griffiths, a 25 year career public servant.  He had viewed pornography on a work laptop after hours at home, using his own internet service provider on eight occasions over three weeks.  He was detected when the laptop was audited and his browsing history analysed.  Mr Griffiths did himself no favours by first maintaining the access was accidental and then that it was “research”: Griffiths v Rose [2011] FCA 30.  His dismissal was upheld.

Or take Mr Stutsel, a 22 year veteran with Linfox.  Armed with a Facebook page that his wife and daughter had established for him he posted abuse against two of his managers, which resulted in his sacking when Linfox representatives discovered it.

Mr Stutsel was luckier than Mr Griffiths but had to work harder than Ms Fitzgerald to find out that his dismissal was unfair and be reinstated.

Linfox appealed to both the Full Bench of Fair Work Australia and then to the Full Court of the Federal Court in vain.

It is difficult to read the FWA decisions: [2011] FWA 844 and [2012] FWAFB 7097, and not be left with the impression that the real evil in the case was not what Mr Stutsel said but that Linfox did not have a formal policy on social media.

The one thing Ms Fitzgerald, Mr Griffiths and Mr Stutsel all have in common is that they did not intend their employers to find out about what they were doing.  Had any of what they did occurred in office hours, there is little question that all sackings would have been upheld.

So as great and convenient as the internet is, people use it at the peril of their employment even out of hours.

 

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.