The Barnaby Joyce saga that has played across the country’s media and resulted in a Ministerial “bonk ban” has again raised the old question of how much say an employer should have in their employee’s private life, especially when it comes to direction and discipline.
The circumstances of Mr Joyce are slightly different as he is an elected official and not an “employee” in the traditional sense, though his partner Ms Campion certainly was. Some of the outrage and incredulity that have arisen from the matter are undoubtedly a result of the higher standard the public applies to their government representatives and other public officials such as judges, law enforcement and department heads. What is good for the goose may not always be good for the gander, and it is unlikely that the public would react with some degree of outrage (though perhaps with the same degree of salacious interest) over the affair between their office accountant and receptionist than they would an elected member of parliament and his media adviser.
The Joyce matter resulted in an update to the Ministerial Code of Conduct, which now states curtly that “Ministers must not engage in sexual relations with their staff. Doing so will constitute a breach of this code”. There has been some commentary about whether such a direction should, or could, be implemented across the private sector. However the problems with such an approach are manifold and, aside from the academic considerations arising from such a direction, the practical enforcement of such policies are likely to be a legal and procedural nightmare.
The policing of such a direction will rely in some respects on the parties’ self-restraint, self-reporting, or relying on other employees “informing” on potential sexual relationships. In the event there is suspicion of a sexual relationship but no admission, what can the employer do? They can of course remind the parties of their obligations under the policy, but otherwise they are not in a position to place a CCTV camera outside the employee’s bedroom door.
Further, human relations being what they are, such directions are of questionable effect. A ban purely on sexual relations between staff members fails to address the various other relationships which may technically be non-sexual in nature but still give rise to a suggestion of favouritism, emotional affairs or questionable moral conduct. Mr Joyce used a similar type of ambiguity in his defence, saying he was not in breach of the Ministerial Code prohibiting the employment of close relatives and partners in ministerial offices without the Prime Minister’s express approval, because he and Ms Campion were not “partners” at the relevant time (the Code did not define the term “partner”).
Colleagues may be rightly furious at the promotion of another staff member who is the subject of the boss’s “crush”. However, if the affair is not sexual in nature they would have little recourse without further evidence establishing a breach of the “no sexual relations” policy. They may of course commence monitoring the parties behaviour to determine if the relationship has crossed the boundaries onto a sexual relationship but such behaviour is hardly conducive to a friendly and harmonious working environment. In any event it is hardly fair on the promoted employee to immediately assume their promotion is not deserved, regardless of their boss’s feelings.
The reality for most is that with the amount of time spent at work relationships between employees are often inevitable. Many of these will go on to be normal, unremarkable relationships which don’t negatively impact the workplace. The risks for employers lies with those relationships that do not end well and those relationships which involve differences in position that give rise to issues relating to sexual harassment and consent. Once the relationship ends and allegations of harassment arise it is too late for the employer to take preventative measures and the threat of vicarious liability looms overhead. The reactive approach of banning all workplace relationships to prevent such issues has an attractive simplicity but it fails to consider the realities of human relationships or the workplace.
Consideration of romantic relationships in the workplace is currently under some scrutiny as a result of the Ministerial ban but other aspects of an employee’s personal life can be a subject of the employer’s scrutiny. Criminal conduct, political opinion and moral behaviour may all be matters the employer privately has issues with, but the ability to discipline or terminate an employee on this basis may very well be unfair or unlawful, especially if there is not a sufficient nexus between the alleged behaviour and the employment.
In Deeth v Milly Hill Pty Ltd, the Fair Work Commission found the dismissal of an apprentice butcher charged, but not yet convicted, of accessory after the fact to murder was unfair and the employer had no real evidence to support its contention that the charge would negatively affect its business. In Joseph Wakim v Bluestar Global Logistics, Mr Wakim appeared before the FWC in his unfair dismissal case via video link from his prison cell, after pleading guilty to child sex offences. While the FWC accepted his dismissal was fair, the offence itself was not the valid reason for dismissal but rather its impact on the reputation of the business.
In Colby Somogyi v LED Technologies P/Li an employee posted on his Facebook page “I don’t have time for people’s arrogance. And your not always right! your position is useless, you don’t do anything all day how much of the bosses c*** did you suck to get where you are?”. The post was taken down minutes later and another post put up to clarify the employee was talking about a situation at his mother’s workplace, not his own. Nonetheless, the employee was terminated and the employer stated that a reason for the termination was the “offensive nature” of the post. FWC did not accept the nature of the post being a valid reason for dismissal and noted that, as there was no apparent connection between the post and his employment, LED Technologies could not rely on the post as a valid reason for termination.
Somogyi is an example of social media blurring the line between private life and work life. Social media policies for larger organisations are now becoming the norm but it requires a delicate balance of protecting the employer’s business while not placing unreasonable demands on an employee’s out of work conduct. In Starr v Department of Human Services, the Department was found to have unfairly dismissed a Centrelink employee of 21 years standing after finding he had breached its social media policy by making negative comments on social media under a false name about Centrelink and its customers. However FWC found that while some of the posts were in breach of the policy, overall the comments had been reactive to comments made by others and were not a deliberate attempt to damage the reputation of the Department. The breach of policy alone, especially when considered in the employee’s extenuating circumstances, did not justify dismissal.
It is often a shock to employers when, upon finding out their employee has engaged in criminal activity or questionable moral activity, they are advised that this alone will not form a legitimate basis to terminate the employee’s employment. Before taking action, the employer will need to consider matters such as:
- Whether the employee’s private conduct has an effect on their ability to do their job? A bus driver losing their license for drink driving will have a direct impact on their duties, while a drink driving charge for an Administrative Manager is unlikely to prevent them performing their normal duties.
- Whether the conduct clearly damages the employer’s business or reputation? As illustration, an employer will be better placed to demonstrate reputational damage due to the highly publicised criminal conduct of a senior employee as opposed to a minor and unpublicised trespass charge against one of its middle management employees.
- Whether the conduct damages the relationship between the employer and employee? Publicly posted comments on social media that disparage or criticise the employer may form a basis for the employer to demonstrate that it can no longer work effectively with the employee.
- Is the private conduct or behaviour protected at law? Certain attributes or actions are protected at law and an employer cannot lawfully discipline or terminate for these reasons. For example, an employer cannot take adverse action against the employee because it does not agree with the employee’s political or religious affiliation or the employee’s sexual orientation or marital status.
Certain measures can be taken at the commencement of or during the employment that will assist an employer in lawfully and fairly disciplining or terminating employees in relation to unacceptable or damaging private conduct. Well thought out policies and procedures which give employees clear guidelines on what standard of behaviours are expected and potential consequences are an example. This should go some way to hopefully preventing the conduct but also ensuring that an employer can point to a clear breach of expected standards. Similarly, contractual obligations in regard to private conduct will place even more stringent requirements on the employee.
However, as seen in Starr, an employer should think carefully before simply assuming the breach of policy or contract is a sufficient reason to terminate an employee’s employment. There should be an objective consideration of how the private conduct affects the employment relationship, if at all.
Disclosure directions to employees, requiring the disclosure of certain conduct so it can be managed, rather than outright prohibitions is increasingly utilised in the private sector. This type of disclosure direction was seen in effect last year at QBE insurance company, when CEO John Neal’s yearly bonus was docked by $550,000 for his failure to disclose, in a timely manner, his relationship with his executive assistant. QBE’s code of conduct required employees to disclose to their manager any close personal relationship that may cause a conflict of interest, and while Mr Neal did disclose the relationship eventually, it was his failure to do so immediately that was the issue.
These disclosure policies allow an employer to consider and manage each instance of private conduct on the facts and circumstances before it at the time, rather than placing an outright prohibition on certain conduct. Whilst the QBE example dealt with disclosure of relationships, such directions can easily encompass a requirement to disclose private activity that may affect the employment such as criminal charges or medication use.
Outright prohibitions on lawful, private behaviour are of questionable use and enforceability. However, an employer still has options when dealing with an employee’s out of work conduct which may affect its business. Well worded policies and contracts, disclosure directions and sufficiently connecting the conduct to the employment will all assist an employer in protecting their business interests without falling foul of the law.