Summary of previous case law
No business can operate without having asked the question: when does an employee's out of hours conduct give rise to grounds for disciplinary action? The question, unfortunately, does not have a simple answer.
In short, while an employer does not have an unfettered right to police the private lives of employees, the courts and tribunals have accepted that there may be grounds for legitimate concerns by employers where an employee's conduct:
- is, viewed objectively, likely to cause serious damage to the employment relationship;
- damages the employer's interests; or
- is incompatible with the employee's duty as an employee.(1)
The above test is a well-established one. However, how this test is applied ultimately depends facts and circumstances of each case and not every connection between out of hours conduct and employment will constitute a valid reason for dismissal.
This article considers where the line can be drawn in the context of the recent decision of a Full Bench of the Fair Work Commission (FWC) in Bobrenitsky v Sydney Trains.(2)
The case law on out of hours conduct is as broad-reaching as human experience. Some examples of cases that have been considered applying the above principles include:
- Rose v Telstra – a case involving an altercation between work colleagues, outside of hours, in hotel accommodation where both employees were working away from their homes and being paid an accommodation allowance by their employer;
- Newton v Toll Transport Pty Ltd – a case involving an altercation between work colleagues at union meetings, attended by the employees in their capacity as union delegates while the employees were on leave (but with attendance paid for by the employer);(3)
- Harris v Meadowbrook Golf Club – a case involving a golf professional's drug use at a private function for a co-worker's birthday held at the golf club;(4)
- Hussein v Westpac Banking Corporation – a case involving an employee whose employment was terminated following a conviction of credit card fraud on another bank;(5) and
- Wakim v Bluestar Global Logistics – a case involving an employee who was convicted of a child sexual offence, who was the primary point of contact for current and potential clients of the employer.(6)
The above cases show that, in cases involving out of hours misconduct, the FWC will examine all the circumstances of the employment in determining whether there is sufficient connection between out of hours conduct and employment to warrant dismissal.
In Bobrenitsky v Sydney Trains, the FWC considered a train driver's out of hours drink-driving charge and whether it had the requisite connection to employment. The facts considered by the FWC were as follows:
- On the morning of 16 August 2020, a non-working day, the employee was arrested by the police on suspicion of impaired driving. The employee was taken to a police station and breath tested. This test found his blood alcohol concentration to be over four times the legal limit. He was charged by the police with a high range drink driving offence that could have resulted in imprisonment of 18 months and his driver's licence was suspended.
- On the morning of 17 August 2020, and less than 24 hours after having been charged with the offence, the employee attended work and drove a train.
- Some three days later, on 20 August 2020, the employee informed the employer of the charge; at which time he was suspended while the matter was investigated.
- The employee had, on two previous occasions in 2009 and 2011, reported for work and, upon being subject to a random test, returned a positive result for alcohol.
- In early 2021, after the employer had conducted a comprehensive internal disciplinary process, the employee was dismissed.
At first instance, the FWC found the dismissal was harsh, unjust and unreasonable and made orders for the employee to be reinstated with back pay for work lost since the date of dismissal. The employer appealed the decision and was successful with the first instance decision being reversed.
The Full Bench of the FWC found that there was a valid reason for the employee's dismissal on the facts properly considered, including because the employee:
- reported for work the next day and drove a train, despite conceding he did not recall when he stopped drinking the day before or whether he had slept; and
- failed to self-report any concern about his fitness given the events of the day before. Instead, he commenced work on his next shift without taking any steps to determine whether there was residual alcohol in his system and simply relied on his own judgement.
The FWCFB further found it was an inherent requirement of the employee's role as a Category 1 Safety Critical Worker (train driver) that he be able to exercise good judgement, including by ensuring that he did not have alcohol in his system and that he was able to assess his own ability to drive a train safely. In the circumstances, he did not exercise that good judgement – the safety risk created by the employee's conduct was "material and not hypothetical".
The Full Bench of the FWC found, additionally against the above background, that there was insufficient evidence of the dismissal having been harsh. In the first instance decision, considerable weight was placed on the employee having undertaking "significant rehabilitation".
The Full Bench of the FWC found this conclusion was against the weight of the evidence, noting:
- the employee had engaged in past conduct that was the same as the conduct on 16 August 2020;
- evidence of the employee having undergone rehabilitation did not, on the facts of this case, show the employee's behaviour was unlikely to be repeated. In particular the Full Bench noted that the employee had engaged in past rehabilitation efforts that had been unsuccessful in avoiding the 2020 incident.
The employee's application for an unfair dismissal remedy was dismissed by the Full Bench.
As the FWC said in Rose v Telstra, "an employee is entitled to a private life". However, this does not mean such conduct is not capable of being the employer's "business". Whether such conduct can give rise to disciplinary action will, ultimately, be a matter of degree and depend on all the facts and circumstances in the case.
Employers should give careful consideration to the type of out of hours conduct that they intend to manage and ensure that policies and procedures have appropriately broad (and reasonable) reach.
In preparing such policies, employers should have regard to the inherent requirements of each employee's role. For example, as the Full Bench of the FWC noted, in some cases employees may hold a position (eg, police officer, university academic, solicitor or public servant) giving rise to out of hours obligations not to act inconsistently with inherent duties or obligations.
In addition, it is always prudent for a discrimination and harassment policy to be expressly drafted to have some scope to capture out of hours activity. As the cases show, in certain situations out of hours harassment will no doubt have an impact on the victims of harassment (and others) at work.
For further information on this topic please contact Alina Kaye at The Workplace Employment Lawyers by telephone (+61 2 8999 3300) or email ([email protected]). The Workplace Employment Lawyers website can be accessed at theworkplace.com.au.
(1) Rose v Telstra  AIRC 1592.
(4)  FWC 145.
(5) (1995) 59 IR 103  IRCA 147.