Out of hours conduct and unfair dismissal

This is an extract from a recent unfair dismissal case in the Fair Work Commission in which a senior member of the Commission sets out the legal principles which apply to the limited circumstances in which the out of hours conduct of an employee (ie not work related) may be used by an employer to justify the termination of the employment of an employee; or not, as the case may be.

“Valid Reason – Issue of Whether the Offence was Work Related Conduct

[48] Both the Applicant and the Respondent acknowledged that the determination of whether there existed a valid reason for the dismissal involved consideration of whether the Offence involved out of work conduct that could constitute a valid reason. The parties agreed that the principles applicable to the consideration of whether out of work conduct had a sufficient connection with work were those outlined by Vice President Ross (as he then was) in Rose v Telstra, 4 (Rose). His Honour formulated a summary of principle that has since been applied on a number of occasions, and has been recently re-stated by a Full Bench of the Commission:5

“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.”

[49] The Respondent submitted that, viewed objectively, the Applicant’s conduct was likely to cause serious damage to the employment relationship, damage the Respondent’s interests, and that his conduct was incompatible with his duty as an employee. It was conduct of the sort that attracted the legitimate concern of the Respondent.

[50] The Respondent submitted that the Offence had a direct connection to the Applicant’s role as a Train Driver because Train Drivers are, by the very nature of the role, required to drive a vehicle. In doing so, they are required to act safely, and to exercise significant judgement and decision-making. The Applicant’s decision to operate a vehicle the morning after an evening of heavy drinking demonstrated a distinct lack of judgement, at odds with the standard of behaviour expected of Train Drivers, who are Category 1 safety critical workers.

[51] The Respondent submitted that the Applicant’s conduct had the capacity to cause serious damage to the relationship between the Respondent and the Applicant, and it was not necessary for the Respondent to show that the Applicant had caused actual harm to the Respondent’s interests. There would be significant damage to Sydney Trains’ reputation in the event that a driver was found to be driving a train or operating a vehicle while under the influence of alcohol.

[52] The Applicant submitted that, regarding incompatibility with employment, the focus must be on the gravity or importance of the conduct, and its connection to the employment. 6 It is only in cases of extremely serious out-of-hours misconduct that it is not necessary to establish a connection between the misconduct and the employment.7 The question of gravity and seriousness relates not to hypothetical circumstances but to the conduct itself.

[53] The Applicant noted that there was no allegation that the Applicant’s actual performance at work is a factor in the present matter, and submitted that his operational performance at work is exceptional. A driver’s licence is not an inherent requirement of his job and the Applicant had an exceptional safety and operation record.

[54] As to the prospect of damage to the Respondent’s reputation, the Applicant submitted that the hypothetical example relied upon by the Respondent is irrelevant. The relevant question is objectively whether it is likely the Applicant’s conduct caused damage to the Respondent’s interests, including its reputation.

[55] In Wakim v Bluestar Global Logistics, 8 Vice President Hatcher found:

“The mere fact that a person has committed a criminal act outside of working hours does not necessarily mean that there is a valid reason for the person’s dismissal by his or her employer. There needs to be a relationship of the requisite degree between the criminal conduct and the employment. The criteria by which the necessary relationship was to be established was classically stated in Rose v Telstra Corporation Ltd ….:

In cases involving out of hours conduct, it is often contended that the necessary relationship between the conduct and the employment is established on the basis of an assertion that the conduct will in some way affect the employer’s reputation or compromise the employee’s capacity to perform his or her duties. However there needs to be evidentiary material upon which a firm finding may be made that there is or will be the necessary effect; it is not sufficient merely to assert its potentiality: Public Employment Office, Department of Attorney General and Justice (Corrective Services NSW) v Silling ([2012] NSWIRComm 118.)”

[56] The circumstance of an employee who accrued a drink driving charge out of work hours was addressed in obiter by Staindl JR in Hussein v Westpac Banking Corporation (Hussein), 9 a case involving the dismissal of an employee of Westpac following the employee’s conviction on credit card fraud unconnected with his employment as a migrant liaison officer. Staindl JR observed:

“…a conviction on a drink-driving charge which occurred outside work hours would not be relevant to the employment of many people. However, it would be of critical relevance to a truck or taxi driver. It seems to me that an appropriate test is whether or not the conduct has a relevant connection to the employment.”

[57] In my view the Applicant’s conduct in the commission of the Offence lacked the requisite connection to his employment and therefore did not provide a valid reason for his termination. The Offence took place outside of working hours. The Applicant was not on call, and was not due to report for his next shift until the following morning.

[58] I do not accept that the Applicant’s conduct viewed objectively, was likely to cause serious damage to his relationship with the Respondent. In this regard I note that during the course of her evidence, Ms Bunting acknowledged that the Applicant had since 2011 performed his duties “practically flawlessly.”

[59] Unlike the truck or taxi driver referred to in Hussein, the Applicant does not need a valid drivers licence to perform the duties of a Train Driver. I do not accept that a train is a “vehicle,” and I consider that the Respondent impermissibly strains to link the Offence to the Applicant’s duties by submitting that there exists an absence of judgement and decision-making in the Applicant. The observations of the Vice President in Rose are equally apposite to the facts of this matter, where he observed:

“I do not doubt that the applicant’s behaviour on 14 November 1997 was foolish and an error of judgment. He made a mistake. But employers do not have an unfettered right to sit in judgment on the out of work behaviour of their employees. An employee is entitled to a private life. The circumstances in which an employee may be validly terminated because of their conduct outside work are limited. The facts of this case do not fall within those limited circumstances.”

[60] Further, I do not think that there was any reasonable basis for concluding that the Applicant’s conduct had damaged the Respondent’s interests, or had any reasonable likelihood of doing so. There exists no evidentiary material upon which such a finding could be made and the Respondent appropriately conceded that there was no more than hypothetical risk of such damage. 10 The Respondent did not have a valid reason to terminate the Applicant’s employment because of the Offence.

(ii) Valid Reason – Breach the Code and Policies

[61] The Respondent submits that the breach of policies nonetheless brings the Offence within the realm of the employment relationship, and constitutes a valid reason for termination.

[62] I accept that throughout his employment, the Applicant received training on the relevant policies of the Respondent, including the Code, Discipline Policy and Drugs and Alcohol Policy. I further note that the specific policy said to be breached and relied upon by the Respondent in terminating the Applicant was the Code, particularly Clauses 3 and 14.

[63] I do not consider, however, that the Code outlines a clear and coherent policy proscribing or regulating out-of-hours drink driving. The focus of Clause 3 of the Code is on the reputation of the Respondent, and how it can be affected by actions of employees at work, and in certain circumstances outside work. As noted above regarding out of hours conduct, the only reputational damage arising from the Offence was hypothetical, and I do not consider a reasonable person reading that clause would comprehend that it encompasses the conduct involved in the Offence.

[64] While Clause 14 of the Code does define serious criminal offence as being one that is punishable by imprisonment for six months or more, it specifies that such offence:

(a) Must be one which “may impact on your ability to undertake part or all of the inherent requirements of your role;” and

(b) Must be committed at work or related to work.

[65] For the reasons outlined above regarding out of hours conduct, I do not consider that the Offence, and the subsequent conviction and penalty, have affected the ability of the Applicant to undertake any part of his role, or was in any way related to work.

[66] The Respondent is correct in observing that it is not necessary for the Respondent to have a policy specifically proscribing out-of-hours drink driving. 11 The Respondent referred to the decision of Deputy President Sams in Natoli v Anglican Community Services t/a Anglicare (Natoli)12 where the Deputy President observed:

“…it doesn’t take a written social media policy for a reasonable person to know, that what the applicant had done, was contrary to common sense and acceptable behaviour.”

[67] Natoli, however, did not involve a defence that Ms Natoli’s conduct was unrelated to her employment with Anglicare. It involved texts and Facebook posts made while not at work but which were prompted by Ms Natoli’s assumption that a fellow employee had caused the damage to her partner’s car, were based on two earlier incidents at work, had a direct connection to the working relationship and the prospects of that relationship being appropriately maintained, which were reported to management and had a direct potential to impact on the workplace and an employee’s safety. Quite simply, the connection with the workplace was undisputed.

[68] In this matter, the connection with the Offence to the workplace only arose from the requirement, with which the Applicant promptly complied, to notify the Respondent in accordance with Clause 14 of the Code.

[69] The adoption in the Agreement of the definition of “serious misconduct” as including behaviour such as “being charged with a serious criminal offence punishable by 6 or more months imprisonment,” 13 does not bolster in any way Clause 14 of the Code. That provision relates to whether an employee will be suspended with, or without, pay during an investigation.

…………………………………………………..Conclusion Regarding s. 387

[78] After consideration of the relevant matters outlined in s.387of the Act, I am satisfied, for the reasons outlined above, that the Applicant’s dismissal was ‘harsh, unjust and unreasonable’ within the meaning of s. 387 of the Act. His dismissal related to conduct that could only be considered out of work conduct which could never constitute a valid reason for termination. The Applicant’s dismissal was also harsh in its effects upon him.

Remedy

[79] The Applicant seeks reinstatement to his former position without loss of continuity of service, and with back-pay. Reinstatement is strongly opposed by the Respondent. Determining a remedy for unfair dismissal is governed by the provisions of Ch 3, Part 3-2, Div 4 of the Act, which provides as follows in relation to reinstatement:

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[80] It will be immediately apparent that determining a remedy for an unfairly dismissed employee essentially involves a preliminary finding by the Commission as to whether it is satisfied that reinstatement is inappropriate. It is only upon a finding that reinstatement is inappropriate that the Commission can move on to consider compensation as the alternative to reinstatement. 16

[81] The Respondent’s Submissions in relation to reinstatement were as follows:

“If the Commission decides that Mr Bobrenitsky’s dismissal was unfair, it should not order his reinstatement.

The available remedies for unfair dismissal are reinstatement and compensation: s 390(1) FW Act. Whether a person receives a remedy is a matter in the discretion of the Commission. In exercising that discretion the Commission will treat as an important consideration whether the necessary trust and confidence for a workable, viable and productive employment relationship can be restored. The effect of s 390(3) is that the Commission must consider whether reinstatement is appropriate before considering whether to order compensation.

Reinstatement of Mr Bobrenitsky would be inappropriate.

Sydney Trains has lost trust and confidence in Mr Bobrenitsky, in particular with respect to his ability to perform his duties safely: Bunting [68]. Relevantly:

It is of significant concern that the lack of judgement demonstrated by Mr Bobrenitsky on 16 August 2020 could readily transfer to a day on which Mr Bobrenitsky was scheduled to drive a train (which transports up to 1000 passengers at any one time). To allow Mr Bobrenitsky to continue to act as a Train Driver given his history of alcohol consumption prior to shifts and to driving a motor vehicle would pose an unacceptable safety risk to Sydney Trains: Bunting [68(a)].

There is a direct connection between Mr Bobrenitsky’s criminal conduct and his role as a Train Driver as both involve driving a vehicle and, in doing so, require an individual to act safely and exercise good judgement and decision making. His decision to operate a vehicle the morning after an evening of heavy drinking demonstrates a lack of judgement at odds with the standard of behaviour expected of category 1 safety workers: Bunting [68(b), (e)].

Indeed, Mr Bobrenitsky’s drink driving offence was not the first time that he had been affected by alcohol the morning after a drinking session: see paragraphs 40 to 48 above. It was only because he was stopped for a random breath test that Mr Bobrenitsky was prevented from driving a train in 2009 and 2011. Mr Bobrenitsky’s conduct demonstrated that he was prepared to attend work in the morning, having consumed sufficient alcohol the previous day/evening to remain at over the alcohol limit prescribed by his employer: Bunting [69(c)].

It is therefore evident that Mr Bobrenitsky’s conduct on 16 August 2020 was not “aberrant” conduct. His previous alcohol readings while at work are clearly not “inherently different matters” to the conduct that led to his termination: AS [70].

To the extent that Mr Bobrenitsky suggests that his previous alcohol readings demonstrate his “ability to modify his behaviour appropriately as they have not recurred” Sydney Trains submits that the circumstances of his recent drink driving conviction indicate that this is not the case: Bunting [69(d)]; cf AS [70]. Despite attending a rehabilitation program in 2009 and receiving counselling in 2011, he engaged in the criminal conduct in issue: see also paragraph 92 above.

(f) Sydney Trains cannot be confident that Mr Bobrenitsky will comply with the Drugs and Alcohol Policy, which could compromise his safety and that of other staff and the general community: Bunting [68(f)]. Sydney Trains needs to be confident that its employees (particularly those with roles that require adherence to safety procedures, such as Train Drivers) will comply with its policies: Bunting [68(f)].

(g) Ms Bunting is concerned about the inconsistency of Mr Bobrenitsky being subject to a court order requiring an interlock device before driving a car, but not a train. For the reasons set out in Bunting [68(g)] it would not be operationally possible or financially reasonable for Sydney Trains to implement such a measure on its trains, or to breath test Mr Bobrenitsky prior to every shift. In these circumstances Sydney Trains would be left with less stringent safety measures than those imposed on Mr Bobrenitsky by the judicial system.

Mr Bobrenitsky’s conduct and its connection with his work is such that the fundamental trust needed for a relationship between Mr Bobrenitsky and Sydney Trains has been severed, despite Mr Bobrenitsky’s service.”

[82] As will be clearly apparent from my conclusions regarding valid reasons, I have concluded that the Applicant’s conduct that constituted the Offence was out of work conduct that could not constitute a valid reason for termination.

[83] While the Respondent has submitted that it has lost trust and confidence in the Applicant, I do not consider that the Respondent has established a sound and rational evidentiary basis for such asserted loss. Far from the asserted lack of confidence of compliance with the Drugs and Alcohol Policy, the evidence is clear that since 2011 the Applicant has consistently complied with that policy. The Offence was aberrant conduct which did not fall within the purview of the Respondent.

[84] While in committing the Offence the Applicant exhibited a distinct lack of judgment, the evidence does not support a conclusion that such lack of judgment is at all likely to be repeated. Since four days after the Offence, the Applicant has independently undertaken significant rehabilitation, of which the Respondent has been fully aware since 18 December 2020. In light of that significant rehabilitation, it is inexplicable that on 18 February 2021, the Respondent could decide to dismiss the Applicant from employment on the basis it has expressed.

[85] The Offence was a serious criminal matter, but it has been dealt with in the appropriate jurisdiction. It is not for this Commission to add in any way to the punishment that has been imposed upon the Applicant.

Conclusion

[86] In balancing all the relevant factors in this case, I find that reinstatement of the Applicant is not inappropriate. I order that the Applicant be reinstated.

[87] I will also make an order that the Respondent pay to the Applicant lost remuneration for the period from his dismissal to the date of his reinstatement, less the notice paid on termination. Reinstatement of the Applicant shall be effected within 21 days of the date of this Decision or such earlier time as may be agreed by the parties.

[88] Further, I propose to make orders pursuant to s. 391(2) of the Act to maintain the continuity of the Applicant’s employment, as if his dismissal had not occurred.

[89] Orders giving effect to my conclusions will be issued contemporaneously with this decision.”

Bobrenitsky v Sydney Trains (2021) FWC 3792 delivered 1 July 2021 per Cross DP