Off the rails: Termination ruled invalid after failing to connect out of hours conduct to employment

In a recent decision of Bobrenitsky v Sydney Trains [2021] FWC 3792, a train driver who lost his drivers licence as a consequence of drink driving was reinstated to his previous employment after dismissal. In an interesting decision, the Fair Work Commission (the Commission) held that there was no sufficient connection between the loss of drivers licence and his ability to perform the role of a train driver as a basis to terminate employment.

Facts

Mr Bobrenitsky was employed by Sydney Trains and had maintained the position of train driver since 2005. On 16 August 2020, Mr Bobrenitsky was arrested by the NSW Police for suspicion of impaired driving. The Police conducted a breath analysis which revealed that he was more than four times over the legal limit of blood alcohol concentration. He was subsequently charged (the Offence) and his drivers licence was suspended. Mr Bobrenitsky was rostered to work the following morning.

After becoming aware of the Offence, Sydney Trains suspended Mr Bobrenitsky from duty with pay while the matter was referred for external investigation. During the investigation process, Mr Bobrenitsky admitted to the allegations regarding the Offence and described his actions as “inexcusable”. He provided reasons explaining his behaviour, stating that he had “hit rock bottom” after experiencing multiple deaths of friends and family in the past 12 months, the events causing him to “suffer from bouts of depression and anxiety”. He further noted his voluntary admission to various professional help programs and sought leniency from Sydney Trains in deciding the outcome of the investigation. The investigation concluded that the allegation was substantiated and Mr Bobrenitsky was in breach of Sydney Trains’ Code of Conduct (the Code) which stated that its reputation can be affected by employees’ actions at work, and in circumstances, by their conduct outside the workplace. As a result, the decision was made to terminate his employment.

Mr Bobrenitsky was further sentenced in the Local Court to a two-year community corrections order, required to pay a fine and his drivers licence was suspended for 6 months.

Following the termination of his employment, Mr Bobrenitsky filed an unfair dismissal application against Sydney Trains pursuant to section 394 of the Fair Work Act 2009 (Cth).

Decision

The Commission considered the question of whether there was a valid reason for the termination of Mr Bobrenitsky’s employment, specifically, whether or not the Offence was considered to be work related conduct. In reaching its decision, the Commission referenced the established case of Watkins v Bluestar Global Logistics, and stated:

“There needs to be a relationship of the requisite degree between the criminal conduct and the employment… it is not sufficient merely to assert its potentiality”.

The Commission found that Mr Bobrenitsky’s conduct in relation to the Offence lacked the requisite connection to his employment and did not provide a valid reason for termination. The Commission explained that the Offence took place outside of working hours as Mr Bobrenitsky was not on call or due to report for his duties until the following morning. The Commission held that Mr Bobrenitsky:

“Does not require a valid drivers licence to perform the duties of a Train Driver. I do not accept that a train be considered a “vehicle”, and I consider that the Respondent [Sydney Trains] impermissibly strains to link the Offence to the Applicant’s [Mr Bobrenitsky’s] duties by submitting that there exists an absence of judgement and decision-making.”

Further, the Commission cited the case of Rose v Telstra Corporation Ltd and stated that “an employee is entitled to a private life. The circumstance in which an employee may be validly terminated because of their conduct outside work are limited”. The Commission did not consider the Offence to have affected Mr Bobrenitsky’s ability to undertake any part of his role, or was in anyway related to his employment.

Finally, the Commission made note of Mr Bobrenitsky’s “practically flawless” performance of his duties over 27 years of service to the railways and considered his age a relevant factor in obtaining new employment. The Commission ordered that Mr Bobrenitsky be reinstated, and that Sydney Trains pay remuneration capturing the period of his lost employment.

Take Home Messages

When an employee’s behaviour outside of the workplace impacts the trust and confidence of the employer, an employer must analyse whether there is sufficient connection between the out of hours conduct and employment before disciplinary action can be considered.

Remarkably, this case found that there was no sufficient connection and therefore no valid reason for the termination. Whether out of hours conduct can be used for the purposes of termination will be assessed on a case-by-case basis.

As such, employers should ensure that robust policies, procedures and contracts are in place to clarify the expectations of out of work conduct.

For more specific information on any of the material contained in this article please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.