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It can be difficult for employers to know when an employees out of hours conduct, can amount to grounds for dismissal under workplace law. The recent Fair Work Commission decision of Kedwell v Coal & Allied Mining Services Pty Limited[1] may provide employers with some guidance on this issue.

Key Facts

  • Employee seeking relief from unfair dismissal under workplace law
  • Employee had engaged in out of hours conduct, which involved him deliberately driving his car in front of another employee after work, in order to prevent the employee from being able to make a turn
  • Employer conducted an investigation into the employee’s out of hours conduct and decided to dismiss him

Was the out of hours conduct a valid reason for the employee’s dismissal?

The Fair Work Commission identified that in order for out of hours conduct to be a valid reason for an employee’s dismissal, there would need to a sufficiently strong connection between the conduct and the employment relationship. In order to establish whether there was a sufficient connection in this case, the Fair Work Commission considered whether:

  • the conduct could damage the employer’s interests
  • the conduct could cause serious damage to the relationship between the employer and employee
  • the conduct was incompatible with the employee’s duty as an employee

Was there a sufficient connection?

The Fair Work Commission found that there was a sufficient connection between the out of hours conduct and the employment relationship, and therefore the employer was within their rights to dismiss the employee. The Fair Work Commission noted that the conduct of the employee could have led to an injury of a fellow employee, which would have entitled that employee to compensation, as the employee was on their way home from work. If the employee had have been injured by the conduct, the employer could have been liable and this posed a risk to the employer’s interests. The conduct may also have affected the employer’s reputation, as it occurred very closely to the employers work site.

Tips for Employers

  • ensure that you investigate employee’s out of hours conduct when a complaint is made, so as to reduce your liability under workplace law
  • seek advice if you are unsure about whether an employees out of hours conduct amounts to grounds for dismissal under workplace law
  • train staff on about what conduct is and isn’t appropriate under workplace law, outside of the workplace

To read this decision click here.(link is external)


If you would like more information about this article or if you would like any assistance in other employment law matters including employment contracts, please feel free to speak with or email one of our specialist employment lawyers on (02) 9635 7966 or

DISCLAIMER: This article is provided to clients and readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as definitive or complete statement of the relevant workplace law.


[1]  [2016] FWC 6018