An employee had worked with the business for 16 years as a train driver. On 16 August 2020, the employee was not rostered to work and was not on call.  

While driving his car on the highway, he was stopped by police and arrested for suspicion of impaired driving. After a breath analysis, the employee was charged and issued with a court attendance notice.  The employees’ driver’s license was suspended for six months.  

The employee was rostered to work the following day. 

On 20 August 2020, having been formally charged, the employee notified his employer.  

The business’ Code of Conduct stated the employee “must immediately inform [Human Resources] if they have been charged or convicted of a serious criminal offence, or any other offence preventing performance of a full range of duties” - a ‘serious offence' defined as “an offence punishable by imprisonment of six months or longer”.  

The offence the employee was charged with carried a maximum prison sentence of 18 months' imprisonment and was therefore a ‘serious offence'. 

On 24 August 2020, the employee was suspended on full pay pending an internal investigation.  

Three weeks later, allegations were put to the employee by the business, which the employee responded on 9 October 2020.  In his response the employee was candid, confirming the allegations regarding the offence were “true and correct”. The employee took full responsibility and explained he had experienced several traumatic events and was suffering from depression and anxiety.  The employee confirmed that following the incident he had sought professional help through his general practitioner as well as a number of specialised drug and alcohol services.  

On 12 November 2020, the employee was sentenced in the Local Court to a community corrections order, a fine, a six-month suspension from driving after which he would be required to install and use an anti-alcohol interlock device for a further two years.  

On 24 November 2020, the employee was informed the business had substantiated the allegations and made a preliminary decision to terminate his employment. The employee was given an opportunity to respond and did so on 18 December 2020.  In his response, the employee reiterated his contrition and remorse and provided evidence from the various medical and counselling services from which he had sought support.   

On 13 January 2021, the employee was formally notified the business had decided to dismiss him. The employee had the opportunity to appeal against the decision, which he did.   

The appeal was heard on 28 January 2021. On 18 February 2021, the internal disciplinary review panel hearing the appeal upheld the dismissal.  The employee’s dismissal ultimately took effect that day on 18 February 2021.   

The employee later filed an unfair dismissal claim in the Fair Work Commission (“the Commission”). 

The decision 

The case turned on whether there was a valid reason for dismissal sufficiently connected to work.  When assessing the case, the Commission considered whether the employee’s conduct “was likely to cause serious damage to the employment relationship, damage the [business’] interests, and whether the conduct was “incompatible with [the employee’s] duty as an employee”. 

The business maintained the offence had a direct connection to employment, arguing train drivers are required to drive a vehicle and do so safely whilst exercising judgement and decision making. 

The business also argued the conduct had the capacity to damage its reputation. 

The employee argued there was no connection and the issues raised by the business were hypothetical.  The employee was not driving, nor was he due to drive a train that day and there was no requirement for him to hold a driver's license in order to perform his duties.   

Ultimately having considered the conduct, the lack of connection to the workplace, and the employee’s age and length of service, the Commission concluded the dismissal was harsh, unjust and unreasonable. 

The business was ordered to reinstate the employee and recompense him for any lost remuneration.  

Learning for business 

This case demonstrated how vital it is to ensure workplace policies are carefully thought out and relevant to the business. It also highlights the importance to stop and take advice to test how your reasoning interacts with case law and the provisions of the Fair Work Act 2009 (Cth).  

How we can help 

The Victorian Chamber Workplace Relations Advice Line is on hand to provide support and to help businesses understand how to manage complaint, disciplinary and termination processes.  In addition, our Workplace Relations Consultants have a wealth of experience in fair termination processes, as well as conducting workplace investigations and providing advice and support to business considering disciplinary outcomes.   

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222 

[2021] FWC 3792