On The Clock Off The Clock

There has been much discussion about the right to disconnect and employees to disconnect from employers. But something that has emerged from the Right to disconnect laws is raising questions about how far employers can, or should, extend their reach into employees' off-hours behaviour when work-related conduct that affects workplace safety or relationships can still fall within the employer’s purview. 

In the recent Fair Work Commission case of Daniel Pawelcy v Commonwealth Bank of Australia [2024] FWC 2115, Daniel Pawelcy, an employee of the Commonwealth Bank of Australia, contested his dismissal from the Commonwealth Bank of Australia (CBA), claiming it was harsh, unjust, or unreasonable. 

Mr Pawelcy had sent over 50 text messages to his manager, most of which were out of office hours,  that were deemed disrespectful, at times threatening, and damaging to the employment relationship, for concerns he had about his pay, schedule changes, adequacy of training and lack of support. His behaviour toward Ms Obeid appeared to have been motivated by his belief that she was lying to him and not providing the necessary support as his manager - either in his day-to-day work or by standing up for him in workplace disputes  and part of the motivation for Mr Pawelczyk’s conduct was his desire for Ms Obeid to lose her job. The case has highlighted that conduct or communication outside the workplace can still be considered as professional misconduct. 

While Mr. Pawelczyk argued that out-of-hours conduct was beyond the CBA’s scope, the FWC highlighted that the work-related nature of his messages and their impact on workplace dynamics justified the CBA’s intervention. The Company's policy also played a role in determining whether the conduct was a sackable offence, the policy for interactions and behaviours towards other employees was to apply 'at all times'. The policy was deemed to be reasonable. Therefore, the reasons provided for Mr Pawelczyck's dismissal were valid and his conduct outside of work warranted a fair dismissal.

As we have mentioned in our previous article, ‘Your Right to Disconnect,’ there has been the introduction of the Right to Disconnect laws, and like many in the Legal profession we too are curious as to how this may unfold. For instance, if Daniel Pawelcy v Commonwealth Bank of Australia was brought before the Court, would the Right to Disconnect play any role in the Respondents' defence or even the Applicant for that matter? The case underscores the evolving boundaries of workplace conduct and employer oversight in light of the Right to Disconnect Laws. As important as it has been observed that employers must balance respecting employees' private time with managing conduct that affects workplace safety and relationships, so too must employees understand that work-related behaviour, even during private time, can have professional consequences if it adversely affects workplace health and safety.

​​While the right to disconnect attempts to form a boundary it is still apparent that that boundaries between workplace and personal time and communication are indistinct. Following the decision in the well established case of Rose v Telstra, which involved a private fight between two employees while off-duty on a work trip funded by his employer, it was found that there are out of hours circumstances that may result in an employee’s employment being validly terminated. However this is limited to conduct that, when viewed objectively, is likely to cause serious damage to the relationship between the employer and the employee, conduct that damages the employer’s interests; or conduct that is incompatible with the employee’s duty as an employee. Although the facts in Rose v Telstra did not amount to a dismissal it established that for an employer to successfully defend an unfair dismissal claim in circumstances where the reason for the dismissal related to private or out of hours conduct by the employee, the employer must demonstrate that there is a sufficient nexus between the employment relationship and the conduct in question.

Companies often have policies in place regarding conduct both inside and outside of the workplace to maintain a safe work environment under the Work Health and Safety Act 2011. These policies usually detail that conduct with other employees outside of the workplace must be respectful and non-threatening especially where the conversation centres around work, which was the case in Pawelczyk v Commonwealth Bank of Australia [2024] FWC 2115. The employer therefore had to prove that the misconduct caused them reputational damage.

This decision raises critical issues for employers navigating the tension between managing workplace risks and respecting employees' personal time. As the Right to Disconnect laws gain traction, workplaces must carefully craft policies that clearly define acceptable behaviour while ensuring they comply with legal obligations to safeguard employee and employer well-being. This line often gets blurred and thus can be difficult to prove. Nonetheless, employees should understand that when in a working environment whether it be in the physical building, working remotely or at a work event, that their conduct can be scrutinised if it is found to be in contravention to the company's policy.

This article is general in nature and is not legal advice. If you need help dealing with out of hours conduct or another employment law matter, or require assistance with updating your workplace contracts, procedures and policies, Voice Lawyers hear you.

We help people navigate the complexities of workplace laws with confident, practical advice. You can contact us at office@voicelawyers.com, give us a call at 02 9261 1954 or use the link on our website to book a consultation to speak with one of our lawyers.