Recent media reports about alleged sexual harassment in the workplace of retailer David Jones have focused attention on employees' conduct at work functions and what might traditionally have been perceived as after work hour activities by employees.
Various Court decisions in recent years have however shown that employers may be vicariously responsible for employee conduct well past the time the office or factory closes for the day.
One such example is in a Federal Court decision concerning a female and a male employee at a hotel on Norfolk Island. The employees resided in adjacent rooms within accommodation provided by the employer. On two occasions in the early hours of the morning, the male employee sexually harassed his female co-worker in her bedroom. Even though both employees were off-duty at the time, the Court found the employer vicariously responsible for the harassment because the employees' rooms were close together and easily accessible.
A similar example is the decision in Telstra Corporation Limited v Carlie Streeter [2008] ARICFB 15 where early hour consensual sexual activity by some off duty Telstra employees offended other employees not so involved. When its efforts to investigate the matter were thwarted by Ms Streeter, she was dismissed by Telstra. That dismissal was upheld by the Court even though the activities were between off-duty employees.
A recent case involving Boag’s Breweries in Tasmania is illustrative of the fact that employers can also, in appropriate circumstances, have policies that extend an employer’s control into the private or leisure time of employees. The policy which Boag’s Breweries had in place stated that it constituted serious misconduct if any employee was caught drink driving in a private vehicle outside work hours. The employee concerned was apprehended whilst driving his private vehicle on a Friday night well after work hours with a blood alcohol content of 0.154. His subsequent dismissal for breach of the policy was upheld by the Full Bench of Fair Work Australia.
Both from a prospective liability point of view and from an employer’s capacity to control employee activity during private time, the workplace is widening.
For further information on these topics, please contact Ian Curlewis, Partner on 08 9288 6756 / ian.curlewis@lavanlegal.com.au or Michael Jensen, Senior Associate on 08 9288 6944 / michael.jensen@lavanlegal.com.au
