WRITTEN BY John Wilson & Kieran Pender
All public servants would be familiar with the APS Code of Conduct. Like any employee, public servants are expected to behave at work. The behavioural obligations on private sector employees, a mix of unspoken expectations and express policies and procedures, take heightened status in the public sector. All public servants have a statutory obligation, under the Public Service Act, to obey the Code of Conduct.
Much of the Code is uncontroversial. “An APS employee must behave,” the first subsection reads, “honestly and with integrity in connection with APS employment.” Public servants must also act with care and diligence and “treat everyone with respect and courtesy, and without harassment.” Public servants must follow the law, maintain confidentiality, avoid conflicts of interest and use taxpayer resources properly and for a proper purpose.
Critically, much of the Code is limited to conduct “in connection with APS employment”. That phrase is slightly broader than saying the Code only applies at work, between 9am and 5pm. But there must be some material nexus with work. Conduct at conference dinner, attended by a public servant in a professional capacity, would likely fall within scope; conduct at the pub on a weekend would not.
That reflects orthodox employment law. For centuries, the law has sought to distinguish between an employee’s conduct that is within the scope of employer oversight and that which is not. The dividing line has evolved over time. Australian employment law has British heritage, and there was once no such thing as an employee’s private life – employees (servants) were part of their employer’s (or master’s) household, 24/7.
Following the industrial revolution, the dividing line was fixed when workers punched out of the factory. “Provided it did not diminish their capacity to perform the work, the out of hours opinions, hobbies and odd jobs of these employees were of little interest,” scholar Ron McCallum once noted.
In the modern era, the question of how to strike the right balance has been more vexed. For the private sector, it was established in the landmark case of Rose v Telstra in the 1990s that an employer can only regulate an employee’s out of hours conduct in certain narrow circumstances where there is some significant connection or impact on the employer. “Employers do not have an unfettered right to sit in judgment on the out of work behaviour of their employees,” the decision found. “An employee is entitled to a private life.”
The situation for public servants, though, is slightly less straightforward. Unlike much of the rest of the Code, subsection 11 provides that a public servant “must at all times behave in a way that upholds: (a) the APS Values and APS Employment Principles; and (b) the integrity and good reputation of the employee’s Agency and the APS”. Among the APS Values that must be upheld at all times are “ethical”, “respectful”, “accountable” and “impartial”.
What does “at all times” mean? Read literally, it means that public servants must uphold the APS Values and protect their agency’s good reputation 24/7, 365 days of the year. Too often, that is indeed the view put to us by agencies when pursuing Code of Conduct complaints against our clients. At least some departments seem to think they have the ability to regulate their employees’ conduct whenever and wherever it occurs.
Seeking to defend the validity of the provision in a constitutional challenge in the High Court, the federal solicitor-general argued that “at all times” did not mean “always and under any circumstances”. The exact boundaries of the government’s ability to regulate its employees’ private lives probably awaits future litigation.
That said, two recent Fair Work Commission cases provide useful guidance. Although both concerned private sector employers, they have salience for the public sector, too.
The first case delivered an unsurprising result. A Commonwealth Bank employee was dismissed after sending over 50 messages to his manager, often late at night and in the early hours of the morning. These messages were described by Commissioner Sarah McKinnon as “extremely disrespectful”, with some containing threatening language, and conveying “disdain for [the supervisor’s] managerial ability and his desire for her to lose her job”.
The sacked employee sought to argue that, because the messages were sent out of hours, the Bank lacked a valid reason for his dismissal. This was readily rejected by the Commissioner. The connection between the employee’s employment and the conduct was “readily apparent” and there was otherwise “no context outside of work in which the messages could have arisen.”
The decision is a helpful reminder that out of hours conduct with a clear link to work can readily fall within an employer’s legitimate disciplinary purview. If that is the case for the private sector, it is even more so for the public sector – given the statutory breadth of the Code of Conduct. An equivalent public sector case would readily fail; even without reliance on “at all times”, the conduct would most likely be “in connection with employment” – even if the texts were sent at 3am.
Conversely, an interesting and well-publicised recent case involving Virgin Australia led to the opposite outcome. In that case, a flight attendant was dismissed on two grounds of misconduct. First, he was alleged to have breached Virgin’s drug and alcohol policy by having a glass of prosecco at a Christmas party, before accepting a fill-in shift later that night. Second, on another occasion, the attendant had delayed a shift on the basis he was too tired having slept poorly after an incident with a customer the prior day. The attendant subsequently arranged to meet someone through a dating app at his work-provided hotel, “on the basis that having a physical interaction with someone would help him fall asleep.”
The Fair Work Commission found that these incidents did not justify dismissal. While the attendant was in breach of Virgin’s eight-hour alcohol prohibition (having consumed the prosecco seven and a half hours before his shift), Commissioner Pearl Lim determined that uncertainty around the airline’s policy meant this was not a valid reason. Nor was the dating app interaction. “There is nothing wrong with using dating apps for casual sex,” Lim held. “What happens between informed and consenting adults is their own business, unless it breaches a lawful and reasonable workplace policy.”
These cases, although occurring in the private sector, offer a helpful reminder of the lines that must be drawn around employer regulation of out of hours employee conduct. Public servants must behave as such most of the time, but they are entitled to a private life, too.
If you have any questions or queries about the information in this summary, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.
First published 16 September 2024 in the Canberra Times – ‘As a public servant, can your out-of-hours conduct get you in trouble at work?‘