Employees may be terminated for their out of work hours conduct if, viewed objectively, the conduct is likely to:
- cause serious damage to their employment relationship;
- damage their employer's interests; or
- is incompatible with the employee's duties as an employee: Rose v Telstra Corporation Ltd  AIRC 1592.
Caution should be exercised when considering to reprimand or terminate an employee due to their out of hours conduct. For employees statutorily protected from unfair dismissal, an employer who terminates the employment based solely on out of hours conduct runs the risk of an unfair dismissal claim being successfully maintained against them.
In the context of unfair dismissal cases involving out of hours conduct, it has been held insufficient for an employer to merely assert that the employee’s conduct has in some way affected the employer’s reputation or compromised the employee’s capacity to perform their duties — there must be evidentiary material upon which a valid reason for dismissal can be made out.
The Fair Work Commission’s (the Commission) recent decision in Andrew Bobrenitsky v Sydney Trains  FWC 3792 (Bobrenitsky) demonstrates the requirement to establish a sufficient connection between an employee’s out of hours conduct and their employment in determining whether there is a valid reason for dismissal.
Mr Bobrenitsky had been employed by Sydney Trains as a train driver since 2005. In August 2020, Mr Bobrenitsky was arrested by the NSW Police for suspicion of driving under the influence, and when tested, recorded a blood-alcohol level of more than four times the legal limit. Mr Bobrenitsky was issued with a Court Attendance Notice and had his driver’s licence suspended. He was rostered to work the next morning.
Mr Bobrenitsky did not raise his drink-driving arrest with his employer until four days after the incident. Once raised, Sydney Trains investigated Mr Bobrenitsky’s conduct and issued him with a show cause letter asserting his out of hours conduct breached Sydney Trains’ Code of Conduct due to the criminal nature of the conduct. The code of conduct requires employees to notify their managers if they were charged or convicted of a serious criminal offence, defined as an offence punishable by imprisonment for six months or more.
Mr Bobrenitsky employment was terminated by Sydney Trains.
Sydney Trains submitted that Mr Bobrenitsky’s conduct “was likely to cause serious damage to the employment relationship, damage the Respondent’s [Sydney Trains] interests, and that his conduct was incompatible with his duty as an employee”. In this regard, it was submitted that as a train driver, he was required to “act safely and to exercise significant judgement and decision-making”.
Accordingly, Mr Bobrenitsky’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 Sydney Train drivers. Further, it was submitted that Sydney Trains’ reputation would be tarnished if one of their drivers was found to have driven a train while under the influence of alcohol.
Mr Bobrenitsky submitted that the focus must be on the gravity and seriousness of his conduct, and that there was no allegation his performance the following morning had been impacted because of his out of hours conduct.
The Commission held that Mr Bobrenitsky’s conduct lacked the requisite connection to his employment at Sydney Trains and accordingly, was not a valid reason for dismissal. Relevantly, his conduct occurred outside of work hours, he was not on call when the offence took place, and he was not required to conduct any duties relating to his employment until the following morning.
The Commission considered that, viewed objectively, Mr Bobrenitsky’s conduct was not “likely to cause significant damage to the employee’s relationship with the employer” and there was no evidence that his conduct would damage the interests of Sydney Trains.
In this regard, the Commission found that the breach of his employer’s code of conduct was not a valid reason for dismissal, as the only reputational damage was hypothetical and a “reasonable person reading the clause” would not have understood it to encompass the offending conduct.
The Commission held that Mr Bobrenitsky’s arrest (and later conviction) for driving under the influence did not impact his ability to undertake the inherent requirements of his role as a train driver. Pertinently, the possession of a current driver’s licence was not an essential requirement of his employment at Sydney Trains and Mr Bobrenitsky’s had an “exceptional safety and operation record” throughout his 15-year tenure at Sydney Trains.
Taking into consideration his age, length of service with Sydney Trains and low employment mobility, the Commission found Mr Bobrenitsky’s dismissal was harsh, unjust and unreasonable.
The Commission ordered for Mr Bobrenitsky to be reinstated and for Sydney Trains to pay him lost remuneration for the period from his dismissal to the date of his reinstatement.
Key lessons for employers
It is often difficult to balance an employer’s legitimate interests, properly identified, against the private lives and activities of their employees. Where misconduct outside of an employee’s ordinary working hours impacts the duties and interests owed to an employer, that misconduct may necessitate disciplinary action against an employee. While each matter will turn on its own individual facts, the decision of Bobrenitsky makes it clear that misconduct outside of work hours should only result in dismissal if there is a clear nexus between the conduct and the workplace.
Employers should assess whether their policies, procedures and contracts adequately deal with the potential for termination of employment where the employee has been charged with or convicted of an offence, and where the charge or conviction results in the employee being unable to perform their duties.