Thinking | 18 October 2017

Fall from grace – premiership player in strife for off field conduct

The news and internet erupted last week when a premiership player from the Richmond Tigers was accused of circulating explicit photos of a woman on social media and through text messages. Photos of the topless woman wearing a AFL 2017 Premiership medal and holding a football in front of Richmond’s logo were allegedly uploaded to social media and circulated via text without her consent. The football club is now facing some tough questions about the fate of their rogue employee who could face criminal charges.

Time and time again, it seems that employees fail to understand that conducting or communicating about their life through social media whether while at work or at the grand final after party can land them in hot water with their employer. In this update, we take a look at how an employee’s use of social media outside of work can affect the employment relationship.

It has always been the case that employers can discipline an employee for certain conduct outside of work. This is grounded in an employee’s implied duty of fidelity and good faith which prohibits acts outside of employment which are inconsistent with the employment relationship.

As set out in the case of Rose v Telstra Corporation Limited [1998] AIRC 1592 (Rose Case), there are three key situations where an employee’s behaviour outside of work can have consequences for their employment. This includes:

  1. where the out of work conduct, when viewed objectively, is likely to cause serious damage to the relationship between the employer and employee
  2. where the out of work conduct damages the employer’s interests or
  3. where the out of work conduct is incompatible with the employee’s duty as an employee.

While the Rose Case predates the rise of social media, the above principles continue to apply to situations where an employer is looking to discipline an employee for out of work conduct including their conduct on social media. Richmond will, therefore, need to establish a clear connection between the conduct which has occurred and the employment before relying on that conduct to discipline their player or any other employees involved. No doubt the AFL 2017 Premiership medal and Richmond logo will assist in arguing that ‘connection’.

Employers can minimise the risk of reputational damage and vicarious liability for an employee’s out of work conduct by:

  • ensuring there is a well drafted social media policy in place which makes it clear what is and what is not acceptable behaviour
  • training employees about what is expected of them and engaging in meaningful discussions to ensure they understand what boundaries apply
  • considering whether employment contracts should include a specific reference to certain obligations such as not bringing the company or any of its employees into disrepute and
  • ensuring employees are aware of the circumstances in which they may be disciplined or terminated for out of work conduct.

Contact

Oliver Jankowsky

Partner & Head of International Practice

Ed Paton

Partner & Head of SE Asia Practice

Eugene Chen

Partner & Head of China Practice

Melanie Smith

Director - Business Development, Marketing and Communications

Natalie Bannister

Partner & Commercial National Practice Leader

Rhett Slocombe

Partner & Insurance National Practice Leader

Katie McKenzie

DIRECTOR - PEOPLE & CULTURE

James Bull

Special Counsel and Head of Frank

Melanie James

People & Culture Manager

Jacqui Barrett

Partner & Head of US Practice

Paul O’Donnell

Consultant & Head of Energy

Christopher Brown

Partner & Head of UK Practice

Lauren Parrant

Senior People & Culture Advisor, as at 1 July 2022

Melinda Woledge

Marketing & Communications Manager

Jasmine Koh

Senior Associate and Head of Frank

Alison Choy Flannigan

Partner & Leader, Health & Community

Billie Kerkez

Manager – Smarter Recovery Solutions

Peter Jones

Senior Commercial Counsel

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