This case sheds light on another issue surrounding out-of-hours conduct
In a recent case, the Fair Work Commission considered whether a train driver’s out-of-hours drink driving charge constituted a valid reason for his dismissal. One morning in August 2020, the applicant, who had been employed by Sydney Trains for 15 years, was driving on the Great Western Highway when he was arrested for suspicion of impaired driving.
The applicant returned a positive breath analysis reading of 0.206g – over four times the legal blood alcohol limit. After being notified of the applicant’s charge, the respondent suspended him from work duties and referred the matter to Sydney Trains’ Workplace Conduct and Investigations Unit. In a written response following his suspension, the applicant acknowledged that his conduct was “inexcusable” but an insight into his “traumatic” year. He also outlined the rehabilitative measures he had taken, including attending several drug and alcohol counselling programs.
Three months later, the applicant was sentenced to a two-year community corrections order, required to pay a fine, and had his licence suspended for six months. Moreover, following its investigation, the respondent terminated the applicant’s employment in January 2021.
The respondent stated that the applicant’s dismissal was due to his breaching its code of conduct. It further submitted that, viewed objectively, the applicant’s conduct was “likely to cause serious damage to the employment relationship, damage the respondent’s interests, and… was incompatible with his duty as an employee”.
The Commission found that, given the out-of-hours nature of the incident, the applicant’s conduct “lacked the requisite connection to his employment”. It also found that the only reputational damage arising from the applicant’s conduct was hypothetical and that there was no reasonable basis to conclude that the incident had damaged the respondent’s interests.
The Commission noted the respondent’s lack of a “clear and coherent policy proscribing or regulating out-of-hours drink driving”. It also acknowledged the respondent’s concession that the applicant had performed his duties “practically flawlessly” since 2011.
Ultimately, the Commission found that the respondent had no valid reason for the applicant’s dismissal. It ordered the applicant’s reinstatement and that the respondent pay his lost remuneration.
Key Takeaways:
- An employee’s out-of-hours misconduct must be sufficiently connected to their employment to warrant disciplinary action
- Termination based on out-of-hours conduct may lead to a finding of unfair dismissal
- An employee’s criminal charges do not automatically constitute a valid reason for termination
