For out-of-hours conduct by an employee to constitute a valid reason for dismissal, the Fair Work Commission (FWC) requires there to be some relevant connection between the conduct and the employment (as explained in a recent bulletin). In particular, the conduct must be:

• incompatible with the employee’s duties as an employee;
• likely to cause serious damage to the relationship between employer and employee; or
• damage the employer’s interests.

4 cases in which this test has been applied to render out-of-hours conduct a valid reason for dismissal

1. An employee of a bank, who engaged in credit card fraud on another bank, outside work, was validly dismissed for such conduct. The relevant connection was that the employee was required to assist persons whose first language was not English with a range of financial transactions, including, on occasions, handling cash. The employee held a position of responsibility and trust, and the employer was therefore entitled to expect that he was trustworthy and that his honesty in the carrying out of his duties could be relied on.
2. An employee who was convicted of a child sexual offence was a public figure whose conduct attracted widespread media attention, and he was also the primary point of contact for current and potential clients of the employer, and a senior manager, and regarded as a leader in the business.
3. Conduct engaged in by an employee that involved the harassment of a co-worker outside working hours was a valid reason for dismissal because of the effect on the victim of the harassment at work.
4. A deliberate assault on a foreperson outside work was found to be grounds for dismissal because it would likely impact on the relationship between managers and those they were supervising.

Recent application of the test by the FWC Full Bench

These principles were applied recently by the FWC Full Bench in Sydney Trains v Andrew Bobrenitsky (2022). In this case, a train driver was charged with a high-range drink driving offence 1 day before he was rostered on to work. The employee attended work on the following day without checking to see if there was residual alcohol in his system before driving a train. It was also established that on two previous occasions, the employee recorded positive results from random tests.

In the first instance decision, the FWC ruled that there was no valid reason for dismissal because the out-of-hours conduct lacked the requisite connection the employee’s employment. The conduct occurred outside working hours on a day when the employee was not rostered to work, and that the employee did not need a driver’s licence to perform the duties of a train driver.

On appeal, the FWC Full Bench ruled the employee’s conduct did provide a valid reason for dismissal taken as a whole. The failure by the employee to check whether there was residual alcohol in his system before driving a train as well as the previous occasions that the employee returned positive breath tests were relevant considerations. It was these aspects of the employee’s conduct that were seen to be incompatible with the employee’s inherent duties. Such duties involved ensuring that he did not have alcohol in his system and that he was able to assess his own ability to drive a train safely.