Off the clock: Fair Work Commission finds out-of-hours drink driving offence was not a valid reason for dismissal

Generally, the way in which an employee conducts themselves out-of-hours does not fall within the realm of what the employer can supervise or control. However, there are times where an employee’s conduct after business hours and away from work can impact the employment relationship.

The Fair Work Commission (FWC) recently made an important out-of-hours conduct ruling in the case Bobrenitsky v Sydney Trains [2021] FWC 3792 where it ordered the reinstatement of an employee after he was dismissed for drink driving outside of work hours. The FWC found that the employee’s out-of-hours conduct did not have sufficient connection to his employment.

The employee was a Train Driver for Sydney Trains (the Employer).

In August 2020, the employee was not working and was arrested and charged for high range drink driving (the Offence). At the time of arrest, the employee returned a positive breath test four times over the legal limit and as a result, his driver’s licence was suspended.

While waiting for his Court date, the employee notified the Employer that he had been charged with an offence. The Employer subsequently suspended the employee from duty with pay and an internal investigation was conducted. It was alleged that the employee had breached his staff responsibilities and obligations under its Code of Conduct.

While taking full responsibility, the employee responded by offering an explanation as to why he had committed the Offence. He stated that 2020 had been a traumatic year for him with the deaths of two friends and a family member.

He explained that those challenges, along with the unfolding COVID-19 pandemic, led to him suffering bouts of depression and anxiety. He also provided a list of rehabilitative steps that he had taken since the Offence such as attending Alcoholic Anonymous meetings and seeking professional help.

In October 2020, the Employer concluded its investigation and found that the allegations were substantiated.
After the employee was sentenced in the Local Court to a two-year community corrections order and a suspended licence, the Employer commenced a disciplinary process with the employee and ultimately decided to terminate his employment.

The employee subsequently lodged an unfair dismissal application claiming that his dismissal was unfair, unjust and unreasonable.

The Employer submitted that the Offence had a direct connection with the employee’s role as a Train Driver because he was required to drive a vehicle and therefore, the employee’s conduct was incompatible with his duties to act safely and to exercise significant judgement.

However, the FWC did not accept this submission, finding that the employee’s Offence “lacked the requisite connection” to his employment as a Train Driver and therefore did not constitute a valid reason for dismissal. The FWC stated that the employee did not need a valid driver’s licence to drive a train, which by its very nature was not a vehicle.

The FWC also rejected the Employer’s submission that the conduct would have likely caused serious damage to its reputation. The FWC stated that the employee otherwise held a flawless employment record and his conduct viewed objectively was unlikely to cause any damage to the employment relationship.

Therefore, the FWC held that the Employer did not have a valid reason to terminate the employee solely on the basis of the Offence which was committed outside of work hours.

Turning then to whether the employee’s breach of company policy constituted a valid reason for dismissal, the FWC stated that the Code of Conduct did not clearly or coherently outline or regulate out-of-hours drink driving.

The FWC held that the connection between the Offence and the workplace only arose from the requirement that the employee was to notify the Employer that he had been charged and convicted – a requirement of which the employee had already complied with.

Accordingly, the FWC was not satisfied that the Offence, and subsequent conviction and penalty, breached the Code of Conduct.

The FWC also found that the employee had been treated unfairly because the Employer disregarded the significant rehabilitative steps that the employee had undertaken since the Offence.

In having regard to the above, the FWC held that the employee’s dismissal was harsh, unjust and unreasonable.
In determining the appropriate remedy, the FWC ordered that the employee be reinstated to his position with payment for loss of remuneration.

The FWC reached this after taking into account the unlikeliness that the incident would occur again given the employee’s rehabilitative steps. Additionally, the FWC stated that it would be inappropriate to further punish the employee for an offence which had already been dealt with in the appropriate jurisdiction.

Lessons for employees

Employers should carefully draft its Code of Conduct or other policies to outline that disciplinary action may be taken where the employee’s out-of-hours conduct has a connection with or impact on their employment.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 |

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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