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Out of Hours Conduct and Dismissals

The Fair Work Commission (“FWC”) recently handed down the decision of Rodney Fussell v Sydney Trains [2019] FWC 1182 which looks at when out of work conduct will constitute a valid reason for dismissal.  

Mr Fussell was employed as a train guard by Sydney Trains. His employment was terminated after he sent an offensive image to a colleague on snap chat outside of work hours. Mr Fussell’s employment was terminated on the basis that his conduct breached Sydney Trains’ code of conduct and its social media policy which expressly applied to out of hours conduct with other staff on social media platforms.  

Mr Fussell commenced an Application for Unfair Dismissal in the FWC seeking to be reinstated.  
When determining whether there was a valid reason for dismissal, the FWC considered whether Mr Fussell’s conduct had the relevant “work connection” so as to bring it within the purview of the employment relationship.  

Generally, employers have no right to control or regulate an employee’s conduct outside the workplace unless the conduct has a significant and adverse effect on the workplace so that the consequences of the conduct become a legitimate concern to the employer.

In this instance, the out of hours conduct was found to have the relevant work connection because:- 
1.  There was no connection between Mr Fussel and the recipient of the image outside of work other than the social messaging app being used. Mr Fussel had not met the recipient outside of work, nor did he have her personal phone number or email.  2. Sending the offending image was contrary to Sydney Trains’ social media policy which expressly applied to out of hours conduct on social media. 3. The incident was brought to the attention of Sydney Trains’ management by the recipient who was concerned to return to the workplace after receiving the image.  
This case is an important reminder to employers to ensure workplace policies, in particular social media policies, are up-to-date and are expressed to apply to out of hours conduct on social media. 
Employees should be aware that out of hours conduct may impact their employment if it can be shown that there is a real and relevant connection between the private activities of the employee and the employment relationship.   

Liability limited by a scheme approved under the Professional Standard Legislation

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