Points of Law – 31 July 2017 Tony Ross, President Law Society of SA
The case of two AFL executives who lost their jobs over private and intimate relations with coworkers has put a spotlight on the question of when, and where, an employer has the right to delve into the private lives of its employees.
In general, an employer has no such right but there are some exceptions.
An employer has no right, for example, to take action against an employee just because an employee has a recreational illicit drug habit. On the other hand, the employer has a legal duty to ensure the health and safety of that employee and those who work around him. For that reason, employers do have the right to introduce drug testing in the workplace and to take disciplinary action where there is evidence of drug taking, even away from work, which may affect the employee’s ability to do the job and work health and safety issues arise.
Many employers now, when employing someone, incorporate into the employment agreement written policies of the employer to regulate conduct.
Courts have accepted that those policies can be incorporated into the employment relationship and have enforced rights and responsibilities according to the policies. However they must be connected with the employment and relate to legal and not moral standards.
Returning to the two senior AFL executives, in publicly announcing a sexual relationship that each male executive had with a more junior female executive, reference has been made to the AFL’s respect and responsibility policy which relates to both players and officials. It refers to a model anti sexual harassment and anti sexual discrimination procedure across the AFL and its 16 clubs. It also refers to seeking to ensure a safe, supportive and inclusive environment for women. Although there is a reference to community and social responsibility, it is expressed clearly in the context of sexual harassment, sexual discrimination and violence towards women.
The AFL has not suggested any predatory conduct by the men or indeed anything else that would suggest that the relationships were other than consensual interpersonal relationships between two adults of relatively equal standing.
A power imbalance between individuals can be relevant. For example, a sexual relationship between a psychiatrist and patient is forbidden for good reason. On what has been disclosed by the AFL, the underlying principle has no application here.
There is nothing in the structure and functions of the AFL which would suggest that it should treat its employees in relation to respect and responsibility any differently from any other major corporate organisation in this country.
Consequently, it is not surprising that the Chairman of the AFL Commission, Richard Goyder, has emphasised that the two executives “resigned”. The circumstances disclosed to date would not have justified a dismissal either by the AFL or any other employer under current law.