Workplace Law

Workplace Law News and Articles

Mar 302022

Not often do we hear of out of hours conduct that allows an employer to dismiss an employee without being liable for unfair dismissal, but Sydney Trains showed when you can only last week.  The three point test in Rose v Telstra (discussed in this article about the Folau case) is that an employer can validly dismiss and employee for out of hours conduct that is:

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

A Sydney Trains driver was dismissed after being charged with high range drink driving on a day when he was not rostered to work. This was in breach of the employer’s code of conduct. He had been picked up twice before, before his shift, with a blood alcohol reading exceeding the limit per the Sydney Trains Drug and Alcohol Policy. Furthermore, the employee attended work the day after being charged with high range drink driving, without self-reporting immediately, as required by the code of conduct.

First time round, the employee won his unfair dismissal case. Deputy President Cross in the Fair Work Commission found that the dismissal was harsh, unjust and unreasonable as it related to “out of work conduct that could never constitute a valid reason for termination” and due to its harsh effects on the employee.

However, in a second run at the case, Sydney Trains won an appeal to the full bench of the Fair Work Commission (FWCFB). The findings were:

  • The Deputy President had erroneously applied the test of a relevant connection between the employee’s conduct and his employment.
  • The key principles to decide if an employee can be fairly dismissed for out of hours conduct are:
    • First, an employee can be validly terminated due to out of hours conduct that fits the principles from Rose v Telstra . The conduct must be so serious that it repudiates or rejects the employment contract.
    • Second, the out of hours conduct need not be “repudiatory conduct”. That is, the conduct can be indicative of rejection or repudiation, but this is not essential.
    • Third, it is necessary to consider the entire factual matrix.
    • Fourth, the express or implied terms of the employment contract are relevant but not determinative; all circumstances of the employment must be examined.

Under the Fair Work Act, an appeal on a question of fact can only be made about a significant error of fact.  The FWCFB said that the Deputy President’s findings were contrary to the overwhelming weight of evidence that showed a relevant connection between the employee’s conduct and his employment. The employee was a category 1 Safety Critical Worker which required that the employee be able to exercise good judgment about whether he is fit to drive a train safely. The employee’s decision to attend work the day after a high range drink driving offence and to not self-report that he was unfit to do the job as per company policy, even after having been previously sanctioned for similar behaviour, was inconsistent with the inherent requirements of his employment: to be fit to safely drive a train.

The lesson for employers is: have good codes of conduct and apply them consistently, and you can ensure any dismissal is fair and without the time and cost involved in defending unfair dismissal claims.

Contact Peter McNamara before you move to discipline or dismiss and employee:  Peter McNamara

Read the case here:  Sydney Trains v Bobrenitsky [2022] FWCFB 32

Aug 112021

The Government and the High Court have confirmed that casual employees cannot double dip on annual leave loadings.  Casuals are paid a casual loading of around 25%.  The casual loading is meant to cover permanent entitlements like annual leave. Until last week, the Federal Court was saying that casuals can double dip:  see Casual gets […]

Mar 012021

The Fair Work Ombudsman (FWO) and Safe Work Australia (SWA) are telling employers and employees that by and large: employers will be unable to require vaccination by their employees. employees will be unable to refuse to work because a colleague is unvaccinated. Peter McNamara says: “Employers should still be aware of public health orders could […]

Nov 202020

Employers should be alert to current worker entitlements: Unfair Dismissal High Income Threshold; Compensation Cap for Unfair Dismissal; Redundancy Tax Free Amount; Employment Termination Payments (ETP) Lower Tax Rate Cap; Superannuation Maximum Contribution Base; and Civil Penalties for Breaches of the Fair Work Act. Unfair Dismissal High Income Threshold From 1 July 2021, the High […]

Jul 242020

Although Israel Folau recently reached a confidential settlement with Rugby Australia, the termination of Folau’s contract reinvigorated debate about religious freedom for employees and their contracts. Intuitively, perhaps, employers should only be able to restrict employees’ conduct within the workplace, whether that be an office or a rugby pitch. However, this simply is not the case! The rise of social […]

May 052020

Employers can now subscribe to industry specific COVID-19 Safety Updates at the link here. Employers should direct those responsible to subscribe to the updates for their industry sector. The initiative arises from the National Cabinet decision to develop nationally-consistent, industry-specific work health and safety (WHS) guidance on COVID-19 through Safe Work Australia, who will have […]

Feb 182020

Employment lawyers are often faced with this complex legal question: do post-employment restraints survive termination if an employer breaches or repudiates a contract of employment? This issue was settled in a recent Victorian Supreme Court case that held that post-employment restraints do not survive the termination of an employment contract where an employer breaches or […]

Feb 142020

  Employers are responsible for making and keeping accurate employee records. Record-breaking fines have been issued to employers for contraventions of employee record-keeping obligations, such as details of overtime hours, penalty rates and loadings. A Caltex franchisee and its owner were fined $80,190 and $16,038 each for falsifying employee records of the wage rates paid […]