Out-of-hours conduct and dismissal
What you do after hours usually feels worlds away from work. Whether it’s a late night out, an argument with a friend, or simply letting off steam, most employees rightly expect that their personal time stays personal.
But sometimes, events outside work follow you back to the office door. A bad night out, a public disagreement, or even being caught up in criminal charges can make an employer question whether your private conduct affects your professional role.
The law in Australia draws a very firm line: an employer cannot control or punish an employee’s private life unless there’s a real and substantial connection to the employment. It’s only in exceptional circumstances that something you do outside of work can justify disciplinary action or dismissal.
And as one important case — Rose v Telstra — shows, employers often get that wrong.
When Can Out-of-Hours Conduct Justify Dismissal?
The Fair Work Commission and courts have made it clear: for out-of-hours conduct to justify dismissal, it must satisfy at least one of three conditions:
The conduct is likely to seriously damage the employment relationship
The conduct damages the employer’s interests
The conduct is clearly incompatible with the employee’s duties
In other words, it’s not enough for your employer to be uncomfortable with your behaviour. They need to prove a direct link — that what you did seriously impacts your ability to do your job, the company’s reputation, or the trust between you and your employer.
Even if criminal charges are involved, that alone is not enough. The employer must still show how the charges relate to your work.
These principles were powerfully confirmed in a case that many still refer to today: Rose v Telstra.
Case Study: Rose v Telstra — Drawing the Line Between Work and Private Life
Mr. Rose was a Communications Officer for Telstra, responsible for installation and maintenance work. As part of his duties, he was sent to another town to assist with a backlog of jobs. Telstra covered his travel expenses, but what he did after hours was up to him.
One evening, after having several drinks at a nightclub, Mr. Rose and an acquaintance got into a heated argument that spilled back to their hotel room. There, a scuffle escalated into a serious injury involving broken glass. Police and ambulances were called. Mr. Rose needed stitches and missed work the next day.
When he returned to work, Telstra suspended him — first with pay, then without — before ultimately terminating his employment months later on the grounds of “improper conduct.”
Telstra argued that his actions outside work were serious enough to justify dismissal.
But the Commission saw it differently.
The key points?
Mr. Rose was not wearing a Telstra uniform at the time.
The incident took place in a private hotel room, not in a public or company-related setting.
There was no evidence that Telstra’s reputation had been damaged.
There was no direct connection between the private altercation and Mr. Rose’s ability to perform his duties.
The Commission found that while the behaviour was regrettable, it did not meet the legal test for valid dismissal based on out-of-hours conduct. Mr. Rose’s firing was ruled harsh and unfair.
Why This Matters to Employees
Your employer cannot reach into your private life unless there’s a strong, objective reason. They must show that your behaviour seriously affects your work, damages their legitimate interests, or completely undermines the trust required for the job.
If they can’t prove that connection, then disciplinary action — including suspension or dismissal — may be found to be unfair.
Importantly:
Private fights, arguments, or even criminal charges don’t automatically justify dismissal.
Evidence matters. Employers must prove real harm, not just assume it.
The context matters. Where it happened, who knew about it, and whether it directly touched your role are all critical factors.
Being off the clock doesn’t mean you lose all responsibilities — but it does mean your employer’s power to control you is strictly limited.
What to Do If You’re Facing Dismissal Over Out-of-Hours Conduct
If your employer is threatening disciplinary action or dismissal because of something you did in your personal time, remember:
Ask for specifics. What is the exact link to your job?
Request evidence. Feelings and assumptions aren’t enough.
Get advice quickly. Unfair dismissal claims are time-sensitive, and early action can make all the difference.
