Employers are not completely free to restrain workers’ conduct outside working hours, and this was demonstrated by an important ruling by the Fair Work Commission on out of hours conduct. There has to be a robust connection between the worker’s offence and their duties at work, before an employer can take action.

The worker’s job, and his offence

The worker was a train driver in Sydney. On a morning in August 2020 when he was not rostered for duty and had been drinking heavily the previous evening, he failed a drink driving test which found he was driving while more than four times over the legal limit for blood alcohol. 

He notified his employer that he had been charged with the offence. The employer suspended him on full pay and referred the matter to its internal Workplace Conduct and Investigations Unit (WCIU).

The WCIU wrote to him saying his conduct may represent a breach of the organisation’s code of conduct, specifically the sections dealing with staff responsibilities and criminal conduct.

The worker responded saying his drink driving was ‘inexcusable’. He said he took full responsibility for his actions and endeavoured to explain the reasons.

In recent months he’d had family and close friends die due to suicide, health issues and an incorrect medical diagnosis, he said. This had provoked bouts of depression and anxiety, weight loss and an ‘unhealthy mental state’, for which he’d sought professional help.

The night before the incident he had met with a similarly bereaved cousin and drunk too much to help him cope with his distress. Then next morning he’d ‘made a very, very poor and regrettable choice by getting behind the wheel of a car’.

He was sentenced to a two-year community corrections order and fined. His driver's licence was suspended for six months and he was required to have an interlock device installed on his vehicle for two years after the return of his driver's licence.

He expressed great remorse and contrition for his actions, and relief that he had not caused harm to other road users on the day, as well as a willingness to undergo any alcohol rehabilitation program his employer nominated. He respectfully requested his employers to show some leniency in dealing with his case.

Nevertheless, his employer found his conduct had breached its code of conduct and terminated his employment.

The employer’s position on his drink-driving

The employer’s code of conduct said workers need to be aware that the organisation’s reputation could be affected by their actions at work, and in certain circumstances, by their conduct outside the workplace.

The safety-critical nature of the worker’s job meant that the employer viewed his decision to operate a vehicle the morning after an evening of heavy drinking demonstrated a lack of judgement at odds with the standard of behaviour expected of workers in the most safety-critical category of employment.

The employer submitted that his drink-driving on the day of the offence was not the first time he’d been affected by alcohol the morning after a drinking session. The lack of judgment he’d displayed on the day of the incident ‘could readily transfer to a day on which [he] was scheduled to drive a train’. This was said to pose an unacceptable safety risk.

Moreover, the definition of ‘serious misconduct’ in the employer’s enterprise agreement included behaviour such as ‘being charged with a serious criminal offence punishable by 6 or more months imprisonment’. 

The worker argued that that there was no allegation that his actual performance at work was a factor in the present matter. A driver’s licence was not an inherent requirement of his job, and he had an exceptional safety and operation record.

The Deputy President found that though the offence was a serious criminal matter, it had been dealt with in the appropriate jurisdiction. While the worker had exhibited a distinct lack of judgment, it was not likely to be repeated, and he had undertaken significant rehabilitation of his own accord.

He found that the worker’s out of hours conduct did not constitute a valid reason for his termination, and ordered his reinstatement. He also ordered the employer to pay the worker the remuneration for the period between his dismissal and his reinstatement.

What it means for employers

Kate Thomson, the Senior Associate at Australian Business Lawyers & Advisors, reminded employers of “the need to take care that out-of-work conduct (even objectively serious criminal offending) has a sufficiently strong link to an employee’s employment before it will justify a valid reason for termination.  Even where a valid reason exists, the circumstances may nonetheless permit a finding the termination was harsh, unjust or unreasonable.” 

The bottom line: A worker’s conduct when he’s not at work is not necessarily the employer’s business.

Read the judgment: Bobrenitsky v Sydney Trains [2021] FWC 3792 (1 July 2021)