Love Hurts: The Legal Risks of Office Romance

Love Hurts: The Legal Risks of Office Romance
by  John Wilson
When workplace relationships end in tears, the legal fall-out can affect employees and employers.

As personal and professional worlds continue to merge, with employees spending increased time at their desks, it's perhaps unsurprising that Cupid's arrow can strike at the photocopier or water cooler. But the legal perils and pitfalls of office romance, particularly in the public sector, are numerous for both employer and employee. Leaving aside how such romances might affect work performance and the need for one party to ''move on'', let's consider the disciplinary aspects of what can happen when office romances don't quite go as planned.

Even if an unrequited weekend romance spills over into disruption in the workplace, it is possible this will be insufficient 'connection with APS employment' to warrant employer discipline under the code of conduct. 

The days of the employment relationship being characterised as master and servant have long gone. Accordingly, employees, even Australian Public Service employees, are entitled to a private life, and however (inappropriately) they choose to pursue this outside of work in a manner not involving their employment, their employer can have little legitimate involvement.

The key qualifier is that private activities involving APS staff can be the subject of workplace scrutiny, including disciplinary action and even termination. APS employees must abide by the code of conduct provisions of the Public Service Act. Among other things, the code requires that ''an APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment''. Relationship breakdowns, or unwanted sexual advances, can be easily construed as harassment, or conduct lacking respect and courtesy.

The question then becomes: what degree of connection with employment is required before otherwise private relationships can become the legitimate subject of employer scrutiny?

Conduct outside the workplace and out of work hours and that does not use employer-provided technology or devices will only be connected with employment in very limited circumstances. The test articulated by the Australian Industrial Relations Commission in Rose v Telstra was that, when viewed objectively, the out-of-work conduct must be ''likely to cause serious damage to the relationship between the employer and employee'' or ''conduct that damages the employer's interests'' or ''conduct that is incompatible with the employee's duty as an employee''. This is quite a high threshold to meet. So agencies asked by offended employees on the receiving end of unwelcome advances by colleagues on the weekend to ''do something'' need to be wary when entering into this space.

Even if an unrequited weekend romance spills over into disruption in the workplace, it is possible that this will be insufficient ''connection with APS employment'' to warrant employer discipline under the harassment and courtesy provisions of the code. (I say ''possible'' because the jury is still out on the meaning of the phrase ''in connection with employment'', which only came into effect on July 1, 2013.) But, in any case, this is not the end of the matter.

The code also provides that ''an APS employee must comply with any lawful and reasonable direction given by someone in the employee's agency who has authority to give the direction''. In McManus v Scott-Charlton, the Federal Court held that a government agency (AusAID) could make a valid and reasonable direction preventing an employee (Graham McManus) from making all contact with a colleague ''outside the requirements of official duty''. McManus submitted that the direction was not lawful because it was unrelated to his employment duties – it proscribed private contact with the colleague outside work hours. However, Justice Paul Finn considered that the ''significant and adverse effects in the workplace'' of McManus's unwanted sexual approaches were sufficient to make the conduct ''a proper matter of legitimate concern to an employer''. AusAID's right to make the direction was upheld, as was its subsequent decision to discipline McManus for breaching the direction by phoning his colleague at home.

Thus, even where the ''connection'' with employment seems tenuous in terms of demonstrating misconduct by way of harassment or discourtesy, there may still be sufficient basis for an agency to give a direction to an employee about out-of-hours conduct. And wilful failure by the employee to comply with the direction may provide an alternative basis for implementing an APS code of conduct process.

Of course, where the relationship is actively pursued either during work hours, or at work-sponsored social events, or involves agency-provided technology such as instant messaging, a mobile phone or email, the workplace connection is more easily satisfied, and agencies can more readily invoke the courtesy and harassment provisions of the code.

APS employers also face that risk of vicarious liability for sexual harassment. Under the federal Sex Discrimination Act, an employer will be vicariously liable for the sexually harassing actions of an employee if such actions are in ''connection with the employment''. In Lee v Smith, the Federal Magistrates Court found the Defence Department was liable for sexual harassment that took place during an after-work social occasion at an employee's house because the incident ''was the culmination of a series of sexual harassments that took place in the workplace''. Although the incident happened in a social setting, the court considered the conduct to be ''an extension or continuation'' of a pattern of behaviour originating at work, and thus ''the nexus with the workplace was not broken''.

When workplace relationships end in tears and accusations of harassment, sexual or otherwise, are made, both employees and employers may become embroiled in APS code of conduct investigations or in the issuance of directions proscribing various conduct, if there is sufficient connection or impact on the workplace. Litigation, or the spectre thereof, may follow.

APS decision makers in this regard would be wise to first take a step back and consider whether their involvement is lawful and necessary to protect the agency, taking into account the effects on or connection with the employment.