Ethos Winter 2021

Page 20

ETHOS . LAW SOCIETY OF THE ACT JOURNAL

The private lives of employees: Revisited Are there limitations on an employee’s right to a private life? John Wilson and Kieran Pender discuss the evolution of employer oversight beyond the confines of the workplace in the context of recent public sector employment cases.

“I do not doubt that the applicant’s behaviour … was foolish and an error of judgment. He made a mistake. But employers do not have an unfettered right to sit in judgment on the out of work behaviour of their employees. An employee is entitled to a private life.”

Few tasks in employment law are more vexing than locating the precise boundary between work and play.

—Vice President Ross, Rose v Telstra1

In light of the blurring of the boundary occasioned by Covid-19, and a recent decision of the Fair Work Commission’s Full Bench, it is a topic worth revisiting.

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Much ink has been spilt on the scope of employers’ ability to regulate the out-of-hours conduct of employees. Indeed, it is a topic we have considered from time to time in these pages. But the qualifications that necessarily attach to the statement by Vice President Ross in Rose v Telstra Corporation Ltd, that employees are entitled to a private life, remain a source of disagreement.

In this article, we will briefly sketch the evolution of employer oversight beyond the confines of the workplace. We will consider the seminal decision in Rose in 1998 and, more than two decades later, its reaffirmation in June in Newton v Toll Transport Pty Ltd.2 We will conclude with some observations and questions about possible future developments. This article is focused on private sector employment, with its blend of contract law and the protections in the Fair Work Act 2009 (Cth). We will not consider the additional complexities presented by public sector employment (on which we have written extensively elsewhere).