The Employ­ment Real­i­ty of TV Fame

Real­i­ty tele­vi­sion shows thrive on intrigue and dra­ma. A key com­po­nent of suc­cess­ful real­i­ty TV shows is the con­tes­tant view­ers love to hate; the vil­lain who, for a brief peri­od of time, becomes Pub­lic Ene­my No. 1. Of course, being cast in that light on a TV show can dam­age the rep­u­ta­tion of the contestant.

Coun­cil­lor Con­duct Tribunal

A sit­u­a­tion like this was recent­ly con­sid­ered in a deci­sion of the Coun­cil­lor Con­duct Tri­bunal in Queens­land. The deci­sion (F20/3427) relat­ed to alleged mis­con­duct by a for­mer coun­cil­lor of Noosa Shire Coun­cil, Jess Glas­gow, aris­ing from his appear­ance on the real­i­ty show, The Bach­e­lorette, in 2019. He was a Coun­cil­lor at the time of his appearance. 

The alle­ga­tions, set out in the deci­sion, includ­ed the following:

  1. Dressed in a long robe with a crown, telling Ms Kent he was in local pol­i­tics in Noosa’ and the one below the Mayor’ ”
  2. Made sev­er­al com­ments about Ms Kent, name­ly Don’t mind me if I get some wan­der­ing fin­gers alright’, Damn I’m gonna be the first per­son she’s gonna get to ride’ and where the Coun­cil­lor was fac­ing the bot­tom half of Ms Kent’s body: Hey, have a look at my view’ and damn, this beats my last girlfriend’
  3. Where the Coun­cil­lor spoke of a desire to kiss Ms Kent, stat­ing he would’ve just grabbed that sweet­ie and laid one on her, like’. Fur­ther, he then said Know what, I don’t mind if a girl turns, I’ve kissed plen­ty of girls and they’ve turned their heads before. I’m used to it.’ and the bot­tom line is I try [to kiss them]”

The ref­er­ence to Ms Kent was to the Bach­e­lorette” (and for­mer Gog­gle­box per­son­al­i­ty), Ang­ie Kent. 

In response to the con­duct of Mr Glas­gow broad­cast on the pro­gram, there was what was described in the deci­sion as a strong pub­lic out­cry”, and com­plaints to the May­or and CEO of the Council.

The Tri­bunal found Mr Glas­gow had engaged in mis­con­duct in breach of the Local Gov­ern­ment Act and the applic­a­ble Code of Conduct. 

It held that had he remained elect­ed to the Coun­cil (he was no longer a Coun­cil­lor at the time of judg­ment), it is like­ly the Tri­bunal would have exer­cised its dis­cre­tion to rec­om­mend to the Min­is­ter that they sus­pend or dis­miss the Coun­cil­lor from office. The Tri­bunal also imposed a fine on him. 

Like many real­i­ty TV show con­tes­tants, Mr Glas­gow claimed he was the vic­tim of sig­nif­i­cant edit­ing and was asked by pro­duc­ers to act and per­form in par­tic­u­lar ways. This sub­mis­sion was reject­ed. One of the rea­sons for the rejec­tion of this sub­mis­sion was a radio inter­view Mr Glas­gow gave in which he said, It was…my per­son­al self on there”. 

What about employees? 

While this deci­sion relates to the spe­cif­ic duties owed by a local gov­ern­ment politi­cian to the com­mu­ni­ty and, as such, is not an employ­ment law deci­sion, the prin­ci­ples con­sid­ered were sim­i­lar to those applic­a­ble in an employ­ment con­text. If an employ­ee appears on a real­i­ty TV show, and in the process of that appear­ance engages in con­duct (or, through edit­ing, appar­ent­ly engages in con­duct) that brings pub­lic crit­i­cism or oppro­bri­um upon them, what con­se­quences could that have for their employ­ment? What dis­ci­pli­nary action could an employ­er take? 

Gen­er­al­ly, real­i­ty TV con­tes­tants are known only by their first name on the show with a gener­ic descrip­tion of their occu­pa­tion pro­vid­ed. (As an aside, increas­ing­ly these occu­pa­tions are neb­u­lous and nov­el, such as Insta­gram Influ­encer’ or, even more enig­mat­i­cal­ly, Dig­i­tal Talent’). 

As such, the start­ing point is that these con­tes­tants are appear­ing in a pri­vate capac­i­ty and their con­duct on the show has noth­ing to do with their employ­ment. The analy­sis is sim­i­lar to that relat­ing to pri­vate social media use or oth­er out of hours’ pri­vate conduct. 

The applic­a­ble prin­ci­ples for con­sid­er­ing whether an employ­er could ter­mi­nate employ­ment because of such con­duct were set out by Vice Pres­i­dent Ross (as he then was) in the Aus­tralian Indus­tri­al Rela­tions Com­mis­sion deci­sion of Rose v Tel­stra Cor­po­ra­tion [1998] AIRC 1592:

It is clear that in cer­tain cir­cum­stances an employee’s employ­ment may be valid­ly ter­mi­nat­ed because of out of hours con­duct. But such cir­cum­stances are limited:

  • the con­duct must be such that, viewed objec­tive­ly, it is like­ly to cause seri­ous dam­age to the rela­tion­ship between the employ­er and employ­ee; or
  • the con­duct dam­ages the employer’s inter­ests; or
  • the con­duct is incom­pat­i­ble with the employee’s duty as an employee.

In essence the con­duct com­plained of must be of such grav­i­ty or impor­tance as to indi­cate a rejec­tion or repu­di­a­tion of the employ­ment con­tract by the employee.

Absent such con­sid­er­a­tions an employ­er has no right to con­trol or reg­u­late an employee’s out of hours con­duct. In this regard I agree with the fol­low­ing obser­va­tion of Finn J in McManus v Scott-Charlton:

I am mind­ful of the cau­tion that should be exer­cised when any exten­sion is made to the super­vi­sion allowed an employ­er over the pri­vate activ­i­ties of an employ­ee. It needs to be care­ful­ly con­tained and ful­ly justified.’ ”

In short, for dis­ci­pli­nary action to be tak­en, the rel­e­vant con­duct must have some nexus to the inter­ests of the employ­er, for instance, by caus­ing harm to the employer’s rep­u­ta­tion, stand­ing, brand or work¬place environment. 

Giv­en the suc­cess of some of these pro­grams, and the way in which they gen­er­ate dis­cus­sion and debate, par­tic­u­lar­ly on social media, the real­i­ty (par­don the pun) is that an employ­ee’s appear­ance on these shows could con­ceiv­ably cause the kind of harm to the inter­ests of the employ­er con­tem­plat­ed by Rose v Tel­stra Corporation. 

The cir­cum­stances that could lead to a greater risk for con­tes­tants of hav­ing their employ­ment valid­ly ter­mi­nat­ed include:

  • iden­ti­fy­ing (either direct­ly or indi­rect­ly) their employ­er either on the pro­gram or in pro­mo­tion of the pro­gram (this was one of the issues in the Noosa Shire Coun­cil decision);
  • if their duties involve inter­ac­tion with the pub­lic, par­tic­u­lar­ly where the employ­ment entails a rep­re­sen­ta­tive or ambas­sado­r­i­al’ role, requir­ing a degree of good­will from the gen­er­al pub­lic with whom they are dealing; 
  • if the con­duct was dis­crim­i­na­to­ry, high­ly offen­sive, abu­sive or vio­lent, or of an unwel­come sex­u­al nature;
  • if the employ­ee, aware of the dis­tinct pos­si­bil­i­ty of adverse pub­lic­i­ty that could affect the employ­er, fails to warn the employ­er to give it an oppor­tu­ni­ty to proac­tive­ly address the mat­ter should it arise.

Employ­er consent? 

The analy­sis might be more com­plex if the employ­er has con­sent­ed to the employ­ee appear­ing on the real­i­ty TV show. 

If an employ­er gives express per­mis­sion for an employ­ee to be a con­tes­tant on a real­i­ty show, it is arguable it is giv­ing this con­sent in the knowl­edge that the rep­u­ta­tion of the employ­ee (and, by exten­sion, poten­tial­ly the employ­er) might be adverse­ly affect­ed by the appear­ance. Almost every real­i­ty show has its vil­lains who, either by edit­ing or per­son­al­i­ty, or a com­bi­na­tion of the two, become, albeit for a brief peri­od of time, a light­ning rod for pub­lic cen­sure or ridicule. Such con­sent might make it more dif­fi­cult for an employ­er to ter­mi­nate the employ­ment of a contestant. 

Depend­ing upon the nature of employ­ment, and the con­tracts and poli­cies gov­ern­ing that employ­ment, an employ­er might not need to give per­mis­sion to appear on the pro­gram. After all, as not­ed above, the start­ing point is usu­al­ly that the appear­ance is an entire­ly pri­vate mat­ter (albeit one that ends up being very public!). 

As a prac­ti­cal mat­ter, employ­ees will like­ly need to take leave (usu­al­ly either per­son­al or long ser­vice) from their employ­ment giv­en the dura­tion of sea­son of a real­i­ty TV show. In tak­ing such leave an employ­ee might not dis­close the pur­pose of the leave. Indeed, in most cas­es, they would not be under an oblig­a­tion to do so. Per­mis­sion to take the leave need­ed to appear on a real­i­ty TV pro­gram (which is a work­place right) should not be con­fused with spe­cif­ic con­sent to appear on such a show.

A cau­tion­ary tale

It is com­mon­ly believed that many con­tes­tants on real­i­ty shows are appear­ing in the hope of find­ing fame and secur­ing a new media career, so they no longer need to con­tin­ue their exist­ing career. This per­cep­tion is some­times expressed by con­tes­tants on the shows lament­ing that a fel­low con­tes­tant is in it for the wrong rea­sons’, not real­ly look­ing for love’ or is a fame seek­er’ after more Ins­ta followers’. 

While a small cohort of con­tes­tants are able to par­lay their real­i­ty TV show appear­ance into a new celebri­ty career, most soon return to life as nor­mal and their old job. As such, the poten­tial impact on employ­ment for both employ­er and employ­ee aris­ing from being a real­i­ty TV show con­tes­tant needs to be care­ful­ly weighed up before a deci­sion is made to appear.