Crossing the boundaries? Exploring employer controls on lawful employee conduct outside working hours

Abstract

This presentation will explore the intersection between work life and private life, examining recent Australian case law which suggests that the boundary between the two is becoming increasingly blurred. Throughout this presentation, I will seek to define the new boundary which has been drawn by the case law, and attempt to provide some guidance as to how you might inform potential clients, whether they are employees or employers, about their rights. Of particular focus is the recent successful appeal of the decision in 'Streeter v Telstra Corporation Limited' [2007] AIRC 679. In this matter, a female Telstra retail employee had sex with a male colleague in close proximity to three other female co-workers in a hotel room they were all sharing. She also remained in the bathroom with two male colleagues whilst one of the female co-workers used the toilet. Telstra subsequently terminated her employment for several reasons, including that she had sexually harassed her fellow employees. It was also stated that Streeter had been dishonest in answering questions put to her during Telstra's investigation of the incident. At first instance, it was found that she was unfairly dismissed, as her conduct was insufficient to amount to sexual harassment, notwithstanding the upset it caused to the other employees. It was also held that the conduct occurred well away from the workplace, in a privately booked and paid for hotel room. Whilst it was agreed that she had been dishonest during Telstra's investigation of the incident, in the circumstances it was considered that her conduct was not such as to warrant termination, and that overall she was a woman 'more sinned against than sinning'. Telstra was ordered to re-employ her at another retail outlet and to pay compensation for lost remuneration.