Work-life boundaries not always clear cut

By Sarah Townsend, Senior Solicitor

First published in the The Press 25 June 2008

A primary schoolteacher in Australia recently lost her job after she appeared in a magazine posing nude with her husband.

The teacher, who worked at a primary school teaching six and seven-year-olds, appeared with her husband in a sealed section of Cleo, a magazine aimed at women in their 20s and 30s.   The feature, which included nine other couples, involved the teacher and her husband sharing details about each other’s favourite body part and their sexual practices.   The feature was accompanied by a discreet nude photo of the couple.

The issue came to the school’s attention after a parent complained and the teacher immediately lost her job. The matter is now being investigated by the NSW Department of Education and Training. The teacher is launching legal action to get back her job and has the support of several parents, who have signed a petition demanding her reinstatement.   She says that she never lets her private life influence what happens in the classroom.

So, is this really any of the school’s business? The magazine and the article were aimed at adults, not children. The feature was not indecent, was in a sealed section of a magazine and the primary schoolchildren taught by the teacher were unlikely ever to buy or read the magazine. On the other hand, is it appropriate for schoolteachers, who are role models for our children, to pose naked in magazines and candidly discuss intimate details of their sex lives?

These incidents have highlighted the question of whether employers can dismiss staff for what they do outside of work, in their own time.    This problem is not uncommon and many employers will have been faced with this tricky decision.   In the United States, a police officer was dismissed last year after setting up and running a website featuring sexually explicit videos and photographs of his wife. When the local press got hold of the story, it caused a storm of negative publicity and, even though there was nothing illegal about the website, the policeman was sacked for bringing the police force into disrepute.

In New Zealand, the issue has also arisen in the context of employees badmouthing their employers in online ‘blogs’. Last year, The Warehouse sacked an employee when she posted on her Bebo page that “work sux” and that working until midnight was “gay like the management”.

It is clear then, that employers can and do dismiss employees because of their conduct outside of work, even if the employee’s activity is not illegal.    It seems that the higher the profile of the employer (such as a school or the police force), the higher the public’s expectations are that the employer (and by association its employees) will conduct itself appropriately.

But, dismissing an employee for something they have done outside of work in their private life is not a decision to be taken lightly and each case must be investigated fairly and considered on its own merits.   As with any dismissal, a full investigation must be carried out and a fair process followed before making the decision to dismiss. If an employee’s actions outside of work can be linked back to the employer and bring the employer into disrepute, this can amount to serious misconduct justifying summary dismissal.    To sack first and investigate later, as appears to be the case for the Australian primary school teacher, is unlikely to meet the principles of natural justice and would probably be unjustified.

Employees need to be aware that their private life is not always private, particularly where their actions have the potential to bring their employer into disrepute.   Employers faced with issues of potential misconduct outside of work, should remember to think first, act later and if in doubt, seek advice.

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