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FAQs – What is work?

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DURING the course of employment, employees are sometimes expected or invited to attend work-related events, functions or activities during or outside of ‘normal’ working hours or outside the usual office or workplace venues.

These may include after-work drinks, conferences, seminars, training courses, functions including lunches, dinners and parties organised by the employer, client networking functions, team-building activities, staff social club events, travel for business purposes including both regional and interstate travel, corporate sporting competitions and health and wellbeing activities or competitions.

It’s often unclear if these functions or activities took place within the course of employment or in the employees’ own private time and therefore whose responsibility it is if something goes wrong.

“Some of my work colleagues and I went out for ‘after-work drinks’. While there John sexually harassed Jai. Can Jai make a complaint of workplace harassment?”

•   If there is no relevance or connection to John and Jai’s employment, the ‘get together’ is therefore a ‘private event’ and has no bearing on employment obligations or responsibilities.

•   However, if there was a link to the workplace the Anti-Discrimination Act 1998 could apply.

“As an employee my work hours are 9.00 am – 5.00 pm. Can I get into trouble from my employer for things that happen outside of these hours?”

•   The work ‘day’ usually starts when you arrive or sign on or begin your work duties.

•   The work day usually finishes when you sign off or stop working for the day.

•   Just as you are always responsible to your employer while driving a work vehicle (even for private use), you should always be aware of any actions that connect you to your employment such as; wearing company clothing or representing your organisation in any way.

•   Your obligations to your employment and employer may ‘spill over’ into your private life even though you have finished your day’s work. For example; disrespecting or discrediting your employer in public or threatening another colleague may have consequences for your employment. Be very aware that your social media presence is public and your postings could be linked to your employment.

•   Read any workplace agreements, awards and workplace policies (such as your code of conduct), to be aware of obligations you have to your employer.
I don’t think it’s fair that my work dictates how I behave in my own home!

•   If your behaviour in your own home has no relevance or connection to your employment or your employer then what you do in your own home is your private business.

•   However, see the above question and information about work hours and responsibilities.

“Some of my colleagues are staying at a motel so that we can go to a conference nearby. Does our workplace Code of Conduct apply while we are away from our normal work venue?”

•   Yes, your accommodation at the motel is connected to your attending the conference as part of your employment.

•   Another connection to your employment is that your employer may be providing and paying for your accommodation whilst you attend the conference.

“Our work Christmas BBQ is being held at a local park. As the venue is nothing to do with my workplace, why do I have to comply with the Code of Conduct?”

•   The BBQ is promoted as a ‘work’ event. As such, the responsibilities of you and others attending from your workplace are covered in your workplace policies and other relevant laws.
•   Just as your employer has an obligation to provide a safe and respectful space for any work-related event, you have an obligation to behave safely and respectfully.
•   Also, if alcohol is supplied the employer might remind everyone of their responsibilities when attending a ‘work’-related event.

If you’re not sure about your employment situation in relation to your obligations, review your workplace induction package, read your Code of Conduct and discrimination and workplace behaviour policy or talk to your human resources department or manager.

CASE SUMMARY: Dismissal for out of hours text warranted.

The Fair Work Commission upheld an employee’s dismissal for sending a co-worker an obscene image via text message even though the message was sent after hours between private mobile phones. Despite a claim the dismissal was harsh, unjust or unreasonable the Fair Work Commission found the employer’s workplace harassment policy, together with its bullying and harassment policy clearly prohibited such conduct and that the employer had made sure all its employees knew about the policies and had training on them.

It found the employee had been warned about inappropriate conduct the previous month and had clearly breached the policies, and rejected the argument that the text was sent by mistake and was not sufficiently connected to the employment of both men because it was sent out of work hours between private mobile phones. The dismissal was therefore justified.

Read more about the case here: Ambrose v Moolarben Coal Operations Pty Ltd (2014)

(c) Office of the Anti-Discrimination Commissioner 

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