The Case

Sydney Trains v Bobrenitsky (2022)

On 16 August 2020, Mr Bobrenitsky, a train driver for Sydney Trains, was arrested by NSW Police. After undertaking an alcohol breath test, Mr Bobrenitsky returned a high-range drink-driving reading, more than four times the legal limit. Mr Bobrenitsky was charged with high-range drink driving, issued a Court Attendance Notice and had his NSW driver’s licence suspended.

On 17 August 2020, Mr Bobrenitsky attended work and drove a train. On 20 August 2020, Mr Bobrenitsky advised Sydney Trains of the charge and was stood down with pay.

Following a procedurally fair investigation and show-cause process, which provided Mr Bobrenitsky with an opportunity to respond, his employment was terminated.

The Deputy President of the Fair Work Commission at first instance found that Mr Bobrenitsky’s dismissal was harsh, unjust and unreasonable on the basis that it related to “out-of-work conduct that [the Deputy President held] could never constitute a valid reason for termination”. The decision was appealed to the Full Bench of the Fair Work Commission (FBFWC).

The Verdict

The FBFWC indicated that whether conduct engaged in privately, out of hours or outside work has a relevant connection with employment to constitute a valid reason for dismissal, it is necessary to consider the entire factual matrix. This 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 the employer’s other employees.

Mr Bobrenitsky had failed two prior random blood alcohol screening tests administered at work in 2009 and 2011. The FBFWC held given this, together with the recent high-range PCA out-of-hours offence, Mr Bobrenitsky had shown that he was at risk of not being able to self-assess and may drive a train when it was not safe to do so.

The FBFWC therefore found the out-of-hours conduct was sufficiently connected to Mr Bobrenitsky’s employment and was a valid reason for his dismissal.

The Lessons

The issue of what constitutes out-of-hours conduct is gaining increasing prevalence as the nature of workplaces change in a post-COVID work environment. More and more employees are working externally so determining what constitutes out-of-hours conduct is becoming increasingly important. When making the determination, the entire factual matrix needs to be considered. Out-of-hours conduct, when considered in light of the matters outlined by the FBFWC in this case, can give rise to a valid reason for dismissal in appropriate circumstances.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.