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Full Bench clarifies test for out of work conduct

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Trains N’ Roses

In our last Conversations, we discussed two recent decisions of the Fair Work Commission (FWC) which looked at an employee’s conduct outside of work and whether or not that conduct could be sufficiently connected to their employment so as to constitute a valid reason for dismissal.

In our last Conversations, we discussed two recent decisions of the Fair Work Commission (FWC) which looked at an employee’s conduct outside of work and whether or not that conduct could be sufficiently connected to their employment so as to constitute a valid reason for dismissal.

We expect that these types of disputes will become more prevalent in a post-COVID-19 environment where employees no longer need to physically be in a workplace to be engaging in conduct that falls within the scope of their employment.

It is therefore quite timely that the Full Bench of the FWC has, in another recent decision, clarified the correct principles that must be followed when assessing whether or not an employee’s conduct outside of work is sufficiently connected to their employment so as to warrant any disciplinary action by the employer.

The relevant test for out of hours conduct was set out in Rose v Telstra [1998] AIRC1592 (later confirmed by the Full Bench in Newton v Toll Transport Pty Ltd(Newton) [2021] FWCFB 3457). The approach in Rose is as follows:  

“…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.”

In Sydney Trains v Bobrenitsky [2022] FWCFB 32, the Full Bench considered this approach as well as a number of subsequent cases that required an assessment of whether out of hours conduct was sufficiently connected to employment so as to constitute a valid reason for dismissal.

The Full Bench confirmed that a consideration of the entire factual matrix is necessary in these situations and will include matters such as:

  • the nature of the out of hours conduct and what it involved;
  • where the out of hours conduct occurred;
  • the circumstances in which the out of hours conduct occurred;
  • the nature of the employment;
  • the role and duties of the employee concerned;
  • the principal purpose of the employee’s employment;
  • the nature of the employer’s business;
  • express and implied terms of the contract of employment;
  • the effect of the conduct on the employer’s business; and
  • the effect of the conduct on other employees of the employer.

Using this approach, the Full Bench overturned a decision of Deputy President Cross, which ordered the reinstatement of a train driver after it was found that he was unfairly dismissed by Sydney Trains (the Employer) for out of hours conduct. The first instance decision found that the conduct lacked the requisite connection to the employee’s employment and was therefore not a valid reason for dismissal. Our blog Off the clock discussed the first instance decision.

The employee was a train driver (a “Category 1 Safety Critical Worker” under the National Standard for Health Assessment of Rail Safety Workers) who had been dismissed because he had been charged with a high range drinking offence within 24 hours of commencing a shift.

A major factor in the Employer’s decision to dismiss the employee was that he had, on two previous occasions in 2009 and 2011, engaged in similar conduct where he had shown up for work and recorded a blood alcohol concentration level above the limit permitted by the Employer’s Drug and Alcohol Policy, which was only discovered as a result of a random breath test shortly before he commenced work.

In overturning the initial decision, the Full Bench found that the principles set out in Rose had been misapplied at first instance and that DP Cross had not considered the entire factual matrix that had been disclosed by the evidence in determining whether there was a valid reason for dismissal.

In particular, the Full Bench considered that the first instance decision unduly focused on peripheral matters which (whilst relevant) were not determinative, such as the fact that the employee’s conduct occurred outside of working hours on a day when he was not rostered to work and that the employee did not need a driver’s licence to perform his duties as a train driver.

The Full Bench found that the first instance decision had failed to engage with the evidence which, on the employee’s own admissions, established that, in committing the offence, he had exhibited a significant lack of judgement, was not thinking clearly and knew that his conduct was reckless.

The employee also knew that he could injure himself or someone else, that he should not have alcohol (or residual traces of alcohol) in his system when driving a train because it could affect his ability to drive safely and that he was required to be self-aware in relation to his ability to drive a train safely because he was not supervised and could be rostered to drive a train with less than 24 hours ’notice.

The Full Bench noted that he did this in circumstances where he knew that his judgement had failed him on two previous occasions and he had been sanctioned for that same conduct.

The Full Bench considered that it was not to the point that there was no evidence that the employee ad alcohol in his system when he attended work, as had been found in the first instance decision. Rather, the employee was employed in a special position with duties and obligations to the effect that he was able to exercise good judgement, including by taking steps to ensure that he did not have alcohol in his system and that he be able to assess his own ability to drive a train safely. Again, contrary to the finding at first instance that the risk to safety was only a hypothetical one, the Full Bench found that “there was nothing hypothetical about the risk that the [employee] could fail to self-assess and drive a train when it was not safe for him to do so”.

The Full Bench therefore found that the conduct was sufficiently related to the employee’s employment so as to warrant a valid reason for dismissal. It upheld the Employer’s appeal and found that the dismissal was fair in all of the circumstances.

Lessons for employers

The case law has made it clear that there will only be limited circumstances in which an employer can dismiss an employee for out of hours conduct. As the Full Bench noted in this decision, “the out of hours conduct must be sufficiently connected to the employee’s employment” (at [141]).

However, this does not mean that every connection between out of hours conduct and employment will constitute a valid reason for dismissal. It requires a consideration of the entire factual matrix of a situation and this decision has provided helpful guidance on the matters that should be considered.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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