CML Lawyers

Stand Clear – Doors Are Closing on Out of Hours Conduct

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.


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