A train driver who lost his driver’s licence was dismissed by Sydney Trains after being employed for 16 years. The employee lodged an unfair dismissal claim on the basis that the decision was harsh, and the offence was not relevant to his employment.
The Case:

The problem arose when the employee was charged with high range drink driving, outside of working hours. The employee promptly notified the employer, Sydney Trains, that he had been charged with a criminal offence as per their code of conduct. The train driver was suspended with pay while Sydney Trains investigated. Later, the employee was convicted of the offence and his drivers licence was suspended for six months. In response Sydney Trains dismissed the train driver for breaching their code of conduct.

The Decision:

The Fair Work Commission determined that the dismissal was harsh, unjust and unreasonable. The Commission found the drink driving offence was not inherently connected to the employment of the train driver so was not a valid reason for dismissal. This is because the offence took place outside of work hours and the employee was not on call, wearing a work uniform or driving a company vehicle. Therefore, the offence did not pose risk to Sydney Trains.  The Commission found that holding a valid driver’s licence was not an inherent requirement of the role as a train driver and that Sydney Trains had ignored the employees rehabilitative steps (such as undergoing counselling).

In this case the employer did not establish a sound and rational basis for the loss of trust or confidence in the employee. In fact, the connection between the offence and the workplace only arose because the employee was following the Code of Conduct which required staff to disclose criminal offences to their manager. While the offence was serious in nature it had been dealt with in the appropriate jurisdiction.

As a result the employee won the claim and Sydney trains was ordered to reinstate his employment and compensate him for his lost wages from his dismissal date.

How This Impacts Your Business:

The inherent requirements of a role must be relevant and clearly outlined. As an employer, if you expect an employee to maintain a qualification throughout their employment, it needs to be outlined in their employment contract and must be genuinely required for the role.

Employees who disclose criminal proceedings to comply with an employer’s code of conduct cannot be automatically terminated. There needs to be sufficient reason for the offence to impact the workplace or employer.

ProcessWorx HR Advisors have experience dealing with termination and unfair dismissal claims. If you have queries about anything above and want advice personalised to your business, contact us on (08) 9316 9896, or email enquiries@processworx.com.au.

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Written by Danielle McNamee

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