Misconduct outside – Livingstones reconsiders the ‘workplace’

By Nadia Taylor and Panashe Dube

WHERE is the line between what employees do outside of work and what they do at work?

Is there a line? Does it matter if the employee’s actions are impacting the workplace? 

To some extent, employees should be at liberty to enjoy their private lives free from scrutiny/intrusion by the employer.

However, this must be balanced with an employer’s right to regulate employees’ out of hours conduct if the conduct is likely to impact on the employer’s business interests.

The traditional concept of the workplace has now evolved due to social media, other technological developments and the increased blending of personal and work time.

Here are some key considerations to help you navigate this rapidly changing landscape:

1. Ensure policies clearly set out expected standards of behaviour.

Training in relation to the policy is recommended to ensure that all employees are aware of the expectations.

2. Employers can use policies to regulate the out of hours conduct of their employees where there is a relevant link to the employment requirements of the employee, for example:

 Drug and alcohol policies where it affects safety and/or performance. 

 Banking industry employees can have a policy targeting dishonest or fraudulent conduct, even when the conduct occurs out of work.

3. Consider whether the requisite connection or nexus between the conduct and the workplace/employment relationship is established before taking any disciplinary action.

4. Having established the requisite nexus with employment:

 Act on issues promptly when they occur;

 Ensure procedural and substantive fairness; and

 Apply Code of Conduct and disciplinary policies equally.

5. On social media activity issues, consider your policies and whether the social media platform is seen as an extension of the employee’s work environment.



  • Nadia Taylor is a director and Panashe Dube is a consultant with employment relationship advisory specialist firm Livingstones. Livingstones is an industry expert member of NSW Leaders. 


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