In the recent case of Sydney Trains v Andrew Bobrenitsky [2022] FWCFB 32, the Full Bench of the Fair Work Commission upheld an appeal on the grounds that the Deputy President erred in concluding that an employee had been unfairly dismissed following a serious drink driving conviction. Although Mr Bobrenitsky’s employment was terminated in response to misconduct that transpired away from his work, the Full Bench held that the nature of the misconduct was such that the employee could not be reasonably entrusted to continue carrying out his train driving duties.

Facts

Mr Bobrenitsky had been employed by Sydney Trains for sixteen years. His employment was terminated in February 2021 after he was convicted of driving a motor vehicle while he was almost four times over the legal limit. It was his third drink driving offence. Mr Bobrenitsky was sentenced to a two-year community corrections order and his driver’s licence was suspended for six months.

Despite being in breach of various employment obligations under the Sydney Trains employee code of conduct, the Deputy President nevertheless held that Mr Bobrenitsky had been unfairly dismissed on the following grounds:

  • The dismissal related to a driving offence that was characterised as misconduct ‘out of work’, which could never constitute a valid reason for dismissal.
  • The dismissal was deemed to be harsh, unjust, and unreasonable in its effects on Mr Bobrenitsky. This was because Mr Bobrenitsky was less likely to obtain further employment due to his older age and licence restrictions.

The Full Bench overturned this conclusion and held that the preliminary decision erred in its application of principle and fact. Consequently, valid reasons for dismissal did exist and Mr Bobrenitsky dismissal was held not to be harsh, unjust or unreasonable.

Valid reason for dismissal?

Under section 387 of the Fair Work Act 2009 (Cth), employers should be aware that the starting point to rebutting any unfair dismissal claim is proving they possessed a valid reason for dismissal that lawfully appertained to the employee’s role. Notably, this reason must be supported by a sound and defensible justification that validates their decision to terminate the employment agreement.

Where employers intend to dismiss workers for out of hours misconduct, a reason will only be valid where there is proof that the conduct was relevantly connected to employment. A ‘relevant connection’ is one where the misconduct ‘touched the duties or abilities’ of the employee.

In Mr Bobrenitsky’s case, the Court held that a train driver engaging in driving under the influence in his personal life was directly connected to his job of a professional driver, whose role entailed conveying thousands of passengers ‘safely’, such that a higher standard of care was expected of him. Inherent to this position were the requirements that he demonstrated:

  • a high degree of independent judgement
  • decision-making
  • compliance with statutory public safety obligations.

Mr Bobrenitsky egregiously disregarded such obligations that were fundamental to his employment by turning up to work the day after being charged with being four times over the limit and failing to notify his employer of his offence. Further, on two other occasions prior to termination, he had attended work with alcohol in his system, which was detected through random breath testing in the workplace. Accordingly, Sydney Trains possessed a valid reason for dismissal given Mr Bobrenitsky’s conduct evinced an inability on his part to properly discharge his train driving duties.

Was the dismissal procedurally fair?

Section 387 of the Fair Work Act 2009 (Cth) necessitates that employers afford their workers procedural fairness during the dismissal process. This means that any employer conduct considered ‘harsh, unjust or unreasonable’ will invalidate a termination, even where there is a valid reason for dismissal. While this did not emerge as a contestable issue in Mr Bobrenitsky’s case, employers should always be proactive in providing notice and reasons of dismissal to their employees to avoid any allegations of unfair dismissal .

Key takeaways for employers

In summary, dismissal of an employee who has been convicted of an offence may constitute a wrongful termination where the employer fails to evidence a connection between the conduct and the employee’s duties. Employers should be mindful that they have must have a valid reason for terminating an employee’s employment.