A recent unfair dismissal decision by the Fair Work Commission ("FWC") highlights the limits of an employer's power to discipline employees for their out of hours conduct, even where that conduct may attract criminal convictions such as a drink driving charge.


The employee had been employed as a train driver for Sydney Trains since 2005, and was caught by police driving a motor vehicle under the influence of alcohol. The employee had been pulled over on suspicion of impaired driving, and recorded a breath analysis reading of 0.206, more than four times the legal limit for blood alcohol concentration.

The employee was issued with a Court Attendance Notice for high range prescribed content of alcohol, which carried a potential imprisonment term of 18 months, and had his drivers licence suspended. The employee informed his employer that he had been charged with an offence, to which the employer responded by suspending him from work with pay while his conduct was under investigation by the "Workplace Conduct and Investigations Unit".

The employee was issued with a letter which outlined the allegations of misconduct, and notified him that he may be in breach of the relevant Code of Conduct with respect to staff responsibilities and criminal conduct due to his drink driving charge. Under the Code of Conduct employees were required to notify their managers if they were charged or convicted of a serious criminal offence, which was defined as an offence punishable by imprisonment for six months or more.

Throughout the investigation process and in subsequent written responses, the employee acknowledged his wrongdoing and acknowledged that his conduct was "inexcusable". In his written responses, the employee set out the steps he had taken to address his conduct in the months since his charges such as completing programs relating to alcohol recovery, attending recovery groups including Alcoholics Anonymous and abstaining from alcohol. The employee also set out the personal traumatic circumstances which had led him to his drink driving charge, including the death of a friend through suicide, the death of a family member due to an incorrect medical diagnosis, and the death of a close family friend from cancer.

The employee was eventually sentenced to a two-year community corrections order, required to pay a fine, had his licence suspended for six months and was required to install an interlock device on his vehicle for two years after his licence was returned. The employee was subsequently terminated from his employment following the investigation.


The FWC held that the dismissal was unfair as there was no valid reason for the termination. While there was no dispute that the employee had been issued with a drink driving charge and convicted of the criminal offence, the FWC did not consider that the conduct was "likely to cause serious damage to the employment relationship". Given that the conduct took place outside of working hours, the employee was not on-call and was not due to report to his next shift until the following morning, it "lacked the requisite connection to his employment and therefore did not provide a valid reason for his termination". The loss of his driver's licence was also not relevant, as it was not an inherent requirement of his job to hold one, and he had an otherwise "exceptional safety and operation record".

Further, the FWC considered that the employee's conduct was not likely to "cause serious damage" to his relationship with Sydney Trains, as the Deputy Executive Director has conceded that the employee had performed his duties since 2011 "practically flawlessly". The FWC also did not find that there was any evidence that the employee's conduct would damage Sydney Trains' interests, with Sydney Trains admitting that such damage was only a hypothetical risk.

The FWC also considered the provisions of the Code of Conduct regarding serious criminal offences in relation to the drink driving charge. The FWC noted that the provisions also specified that the offence must be one that impacted on the employee's ability to undertake part or all of the inherent requirements of their role, and must have been committed at work or related to work. The FWC again found that there was no impact on the ability of the employee to "undertake any part of his role, or was in any way related to work".

The FWC considered the employee's age, significant length of service and the difficulties he would face in finding employment in the rail industry as factors which made the termination of his employment harsh. The FWC ultimately made an order for reinstatement of the employee, with Sydney Trains required to pay the employee his lost remuneration for the period between his dismissal and reinstatement.

Regulating out of hours conduct

While it has been long held that an employee is entitled to a "private life"1 An employee's misconduct or behaviour outside of their ordinary working hours can have an impact on their duties to their employer, which can lead to questions around what disciplinary measures should be taken.

The crucial question is whether there is a connection between conduct and the workplace. In some cases, the nexus between conduct such as sexual harassment and the workplace has been established in environments outside of the office, and conversely employers have been found not liable for injuries which occurred during work trips.

While out of hours conduct which leads to consequences such as a drink driving charge or other criminal convictions are a serious concern for employers, disciplinary action should always be taken on a case-by-case basis. In some cases, termination of employment will be an appropriate measure, depending on the severity of the conduct and its connection with the work that the employee performs.

Key takeaways:

  • Disciplinary action for misconduct committed outside of work hours must have a connection with employment.
  • Criminal convictions and other behaviours constituting misconduct do not automatically give a right to termination if they are not connected to employment.
  • Employers need to consider the particular circumstances of each case to determine whether measures such as termination are appropriate.


1 Rose v Telstra Corp Ltd [1998] IRCommA 1592