Full Bench confirms connection between out of hours conduct and employment

Edge Legal

13 April 2022

In a recent Fair Work Commission (FWC) decision (Sydney Trains v Andrew Bobrenitsky), a full bench unanimously overturned a previous ruling which found that an employee’s out of hours conduct (drink driving charge) did not constitute a valid reason for termination.

An employee reported for duty for the employer (Sydney Trains) and commenced work as a train driver 21 hours after he was arrested and charged for drink driving (four times over the legal limit). When the employer subsequently found out about the employee’s criminal offence, the employer suspended and terminated his employment. This led to the employee commencing an unfair dismissal application against the employer.

At first instance, it was found that the employee’s conduct did not constitute a valid reason as the conduct (drinking and the criminal offence) occurred outside of his work hours whilst he was not on call and only required to attend work the next morning.

The employer appealed the decision and submitted that:

  • the employee did not take steps to ensure that he could operate the train safely; and

  • the out of hours conduct could affect the ability of the employee to undertake any part of his role or that it was in any way related to his employment.  

The full bench allowed the appeal and found that the principles (Rose v Telstra Corporation Limited) relating to out of hours conduct were narrowly applied, focusing too much on the conduct occurring outside of working hours. When considering the inherent requirement of the employee’s role as a train driver, it was found that safety was of critical relevance to the role of a train driver, Hence, the employee’s conduct was inconsistent with his duties as it directly affected his ability to operate the train safely (quick reaction, staying alert, etc.).

Given this connection, the employee ought to have been concerned with his fitness for duty and reported his concerns, which he failed to.

The dismissal was ultimately found to be fair as any evidence of rehabilitation attempts was outweighed by the recurring nature of the conduct and the short periods of rehabilitation.

Is the out of hours conduct relevant to the employment?

Not every connection between out of hours conduct and employment will constitute a valid reason for dismissal. The out of hours conduct must “touch the employment” such that there is gravity to indicate the rejection of the employment contract by the employee. For example, a drink driving charge which occurred outside work hours is less likely to be relevant to an administrative employee but is more likely to be relevant to whether a truck or taxi driver can safely perform his/her duties.

Low-risk approach to dismissing

Ensuring that your employees are aware of their duties and obligations not only protects you but also reduces the likelihood of having to deal with such conduct. This can be achieved through the use of policies and workshops setting out the organisation’s expectations and the “dos and don’ts”. To read more about out of hours conduct (what can constitute a ground for dismissal) and the effective use of policies, please refer to our previous article “Can I dismiss an employee for their out of hours conduct?”.

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