The Fair Work Commission recently found an employee, who participated in an unsafe practical "joke" on a co-worker outside of work hours, was lawfully terminated as the incident constituted exceptional circumstances creating a link to his employment.

In Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining [2016] FWC 6018, Commissioner Saunders said that it is only in exceptional circumstances that an employer has the right to control the private activities of its employees and "out of hours conduct must have a relevant connection to the employment relationship in order to be a valid reason for dismissal".

Upon leaving work on 11 February 2016, the applicant along with two co-workers deliberately "boxed in" another colleague on a stretch of highway to prevent him from making his usual turnoff towards home. One of the participants later claimed they were "playing a joke" on the victim.

Mount Thorley investigated the incident and decided to stand down two of the employees (including the applicant) and issued a final written warning to the third, claiming they had breached the company's Code of Conduct and Anti-Discrimination, Sexual Harassment and Bullying Policy.

In upholding the dismissal, the Commissioner said that the activities of the employees gave rise to a risk of a serious motor vehicle accident and that bullying conduct of that kind created a serious risk to the victim's health and welfare.

The Commissioner found that the behaviour had a "relevant connection to the employment relationship" because it occurred shortly after the end of a shift, was a continuation of earlier workplace harassment of the victim, took place on the way home from work and could have resulted in a "journey" claim under the NSW Workers Compensation Act 1987 if injury occurred, it impacted the relationship between the four workers and that the employer has a legitimate reason to avoid future risk of injury.

It is important employers ensure internal policies and training addressing workplace harassment adequately inform employees that harassment of colleagues outside the workplace may still result in disciplinary action (up to and including termination of employment) where there is a relevant connection to their employment.