The fine line between when an employer can discipline an employee for their out-of-hours conduct and when it will be unfair continues to be a difficult area for businesses to navigate, following a recent decision by the Fair Work Commission in which a long-standing employee sacked for a serious drink-driving offence was reinstated and compensated.
The employee had been employed as a train driver with Sydney Trains for about 15 years at the time of the incident. In August 2020, he was arrested for drink driving in his vehicle and found to have had a blood alcohol concentration of 0.206, more than four times the legal limit. The employee’s driver’s licence was immediately suspended and, later that year, he was convicted for high-range drink driving, sentenced to a two-year community corrections order, fined, had his licence suspended for six months and ordered to have an interlock device installed on his vehicle for two years after the return of his licence.
During an investigation into the incident by Sydney Trains, the employee advised he had been experiencing depression and anxiety following the suicide of a friend, the death of a family member, the death of a close family friend and due to the stress associated with caring for elderly parents during the COVID-19 pandemic. The night before the incident, he had met up with his cousin for the first time since his aunt’s funeral and consumed a large quantity of alcohol.
Until this incident, the employee had a relatively good disciplinary record, except for two low-level positive results for alcohol in 2009 and 2011. Since that time, his employment record had been “practically flawless” (to paraphrase Counsel for Sydney Trains).
At the conclusion of its investigation, Sydney Trains determined the employee had breached its Code of Conduct, engaged in serious misconduct and that termination of his employment was appropriate in the circumstances.
In response to this conclusion, the employee provide six reports and letters from various medical and support services, including a psychologist and Alcoholics Anonymous. These materials evidenced that he had abstained from alcohol and sought assistance from a range of organisations on no less than 46 occasions in the period since the offence.
Was there a valid reason for the dismissal?
Sydney Trains ultimately failed to convince the Fair Work Commission that there was a valid reason for the dismissal, because the offence “lacked the requisite connection to his employment”. The incident took place outside of working hours, and during a period in which the employee was not on-call or required to report for work until the following day. The employee was still able to perform his duties without a driver’s licence, and the conduct had not materially damaged Sydney Trains’ interests. Finally, Sydney Trains did not have a “clear and coherent policy” proscribing or regulating out-of-hours drink driving.
Considered together, these factors meant there was no valid reason for the employee’s dismissal.
Was the dismissal harsh, unjust or unreasonable?
The dismissal was also found to be harsh, having regard to the employee’s age, length of service and the difficulty he will face in obtaining alternative employment in the rail industry.
Reinstatement the appropriate remedy
In arguing against reinstatement, Sydney Trains unsuccessfully attempted to persuade the Fair Work Commission it had lost the requisite degree of trust and confidence necessary for the employment to continue.
Take home message
Employers are again reminded 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.