The General Position
It is well-recognised that an employee is entitled to a private
life and that their conduct outside work is only relevant to the
employment relationship if it can be said to have breached an
express or implied term of their employment contract. There has to
be some relevant connection between the behaviour and possible
damage to the employer or its reputation. Accordingly, an employer
does not ordinarily have an unfettered right to sit in judgement
over its employees on their behaviour outside work.
The Facts in Toll
Diehm v Toll Transport Pty Ltd T/A Toll Customised Solutions
[2012] FWA 8818 involved an employer who suspected a female
employee of wrongfully claiming sickness absence. As she was
claiming sick pay for that day (allegedly due to a work-related
injury for which she had an open workers' compensation claim),
the employer seemed justified in reviewing her behaviour during her
absence from work.
