Australia: 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:

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 workplace 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.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.