Unfair dismissal and out of hours conduct

This is an extract from the Fair Work Commission’s quarterly practitioner update which contains a summary of a recent unfair dismissal decision in which the Commission ordered the reinstatement of employment of an employee who had been dismissed for a serious traffic drink driving offence which the Commission concluded lacked the relevant connection to the employee’s workplace given that the offence occurred in his own time.

“Bobrenitsky v Sydney Trains (2021) FWC 3792


The applicant who made this unfair dismissal application had been employed as a train driver since 2005. Outside of working hours the applicant was charged with high range drink driving and his driver’s licence was suspended. The applicant promptly notified his employer that he had been charged with the offence, was contrite and provided an explanation. The applicant was suspended with pay while the matter was investigated internally. The applicant was convicted of the offence and his driver’s licence was suspended for 6 months. As a result, the respondent dismissed the applicant for breaching its code of conduct.


The Commission found the drink driving offence lacked a requisite connection to the applicant’s employment [Rose v Telstra] and did not provide a valid reason for dismissal as the offence took place outside of work hours, the applicant was not on call and was not due to report for next shift until the following morning. The Commission also found that holding a driver’s licence was not an inherent requirement of the applicant’s role.

The Commission found there was no more than a hypothetical risk of damage to the respondent’s interests, including its reputation. The respondent had also ignored the rehabilitative steps undertaken by the applicant such as undergoing counselling.

The Commission found the applicant’s dismissal was harsh, unjust and unreasonable. The Commission found the respondent had not established a ‘sound and rational evidentiary basis for its loss of trust and confidence in the applicant. The Commission further found the connection between the offence and the applicant’s workplace only arose because the respondent’s code of conduct required staff to immediately notify their manager if they were charged or convicted of a serious criminal offence.

The Commission noted that while the offence was a serious criminal matter it had been dealt with in the appropriate jurisdiction. The Commission ordered reinstatement with continuity of employment, and compensation for lost remuneration from the date of dismissal to the date of reinstatement, less the notice paid to the applicant on dismissal.”

Read decision [2021] FWC 3792