It probably wasn’t exactly how egg-tossing activist Amber Holt thought her hit on prime minister Scott Morrision would go down. The egg bounced off his head. He cracked jokes about it. She’s been charged with common assault, and may yet lose her job for her efforts.
“I’ve got to go to work, no comment,” she told media after the incident, with a Cotton On Kids lanyard visible around her neck. The clothing company has since confirmed Holt is a casual employee and that it is “investigating” the incident.
“The Cotton On Group is disappointed to hear about yesterday’s incident involving one of our team members,” it said in a statement. “While individuals are entitled to hold their own opinions, we do not condone this behaviour and it does not align with our company values.”
Does Cotton On, or any other employer, have the right to sack an employee for something they say or do in their own time?
The short answer is, in many cases, yes – especially if the business can show the employee’s actions reflect badly on it. In this case the company might find Holt has breached her obligations as an employee to protect the company’s image.
Australian employment law requires that an employee cooperate with their employer, and not engage in any conduct that would undermine the business or bring it into disrepute.
These are terms implied into every employee’s contract of employment by the common law. Over the past 30 years or so, the courts have increasingly interpreted these principles to enable employers to control the private or out-of-hours conduct of employees.
You could therefore find yourself lawfully sacked for untoward behaviour at a work Christmas party, or for posting derogatory comments about the business on Facebook – so long as your employer can show there is a sufficient connection to the employment.
That connection will exist where, for example, drunken behaviour at a party affects your workplace relationships (or constitutes sexual harassment), or where your “private” Facebook post damages the employer’s reputation.
This is why Fair Work Australia upheld a Good Guys franchise dismissing an employee because of his Facebook comments about colleagues, including one interpreted as a threat.
On the other hand Fair Work ruled lighting company LED Technologies had unfairly dismissed an employee for “rude and vulgar” Facebook comments, which he argued was about his mother’s workplace, not his own.
Codes of conduct
Employers have also sought to extend the common law obligations of employees through company policies and codes of conduct. Typically these documents impose very high standards of employee behaviour in a wide range of situations. The employer is then able to discipline or dismiss you for behavioural breaches, even outside the workplace or work hours, especially where (as is common) you have signed a contract in which you agree to observe company policies.
In the past five years we have seen many examples of the collision between “corporate values” and employees’ right to a “private life”.
In 2015, SBS dismissed sports journalist Scott McIntyre for tweeting on Anzac Day a series of comments critical of Australia’s obsession with the Anzac legend. McIntyre’s Twitter account identified him as an SBS employee, and he had more than 30,000 followers. SBS sacked him the next day on the grounds his “disrespectful” comments breached the public broadcaster’s code of conduct and social media policy.