6 April 2017 "What becomes of the broken hearted?" …and can or should employers care anyway?

By Warwick Ryan, Partner

The unfortunate answer to the Motown ballad question - 'What becomes of the broken hearted?' - is they sometimes become stalkers

So, when a workplace romance or flirtation goes wrong, does the employer have a right to tidy up the mess?

A quick review of past decisions shows that the Fair Work Commission is reluctant to let employers terminate an employee based on their conduct outside work time (and not connected with the workplace).  So:

  • outrageous conduct of a sexual nature that occurred after a work-sanctioned party could not be the basis for the employer disciplining the employee, even though the employee had engaged in brazen sexual acts in the presence of her workmates (2007 case)

  • sexual assault (grabbing and kissing an employee on the mouth without their consent) did not entitle the employer to terminate the offending employee even though the assault occurred within an hour after a Christmas party and on the same premises (2015)

  • (this one took place in the Northern Territory - and it could only have happened in the NT!) where an employee's supervisor was found naked at the employee's home on three separate occasions, this did not amount to work-related sexual harassment (2016)

And what does the Commission now think of 'stalkers'?

After the breakdown of an office romance, an employer directed an employee not to have contact with a co-worker unless it was work-related.  The employee continued to harass and contact the co-worker outside work hours and was subsequently dismissed. 

The employee claimed unfair dismissal but, in this case, the Commission found that these out of hours contacts - in the circumstances of the employer's directive - were "legitimate considerations" for the employer in deciding whether to terminate the offending employee.  The employer's direction to the employee not to contact a fellow worker outside work hours was a valid direction and so, by breaching the direction, the employee had breached a lawful and reasonable direction.

This was a pragmatic decision which took into account the fact that the relationship arose out of the two workers working together and the realities of the workplace - the mere presence of the 'stalking' employee in the workplace would create profound issues.  Inevitably, the victim of the stalking conduct would cease to attend work and would be effectively penalised for the other's misconduct.  A win for common-sense and decency.

But the question I'm left with is – would it have made a difference to the poor NT employee if her employer had expressly directed the supervisor not to fall asleep naked on her verandah and in her son's bedroom?  Is that what it takes??

This article was first published on LinkedIn as a blog. You can read the original here.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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