Where does work life begin and private life end?: An examination of employee liability for out-of-hours conduct

Abstract

This paper will explore the intersection between employment and private life. Of particular focus is a recent Australian decision, Telstra Corporation Limited v Streeter [2008] AIRCFB 15, where an employer was able to legitimately dismiss an employee for being dishonest about their lawful out-of-hours conduct. Other recent authorities from the UK and the USA are also explored. Whilst the employment relationship is no longer based on a master-and-servant status system, this paper will nonetheless demonstrate an emergence of employer scrutiny of private life, including sexual behaviour and family structures. In light of recent Australian case law it seems that the courts are more willing to sanction employer investigations into lawful private conduct where that conduct creates 'difficulties' in the employment environment, placing an obligation upon employees to be candid and honest in such investigations. Behaviour considered offensive by employee colleagues, which could include non-normative family structures or transgressive sexual practices, could create such 'difficulties' in the workplace. Such 'difficulties' would then entitle employers to investigate such behaviour and require disclosure by the employee. Moreover, the increased ability for out-of-hours conduct to pervade the workplace via the internet (e.g. sites such as MySpace and Facebook) means that there is a greater scope for employers to observe and monitor the private conduct of their employees. Ultimately, this paper will explore the shifting boundaries between work life and private life, and questions what impact increased employer control over private affairs will have both on the individual and the family.