Reinstatement ordered for train driver convicted of after-hours drink driving

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Reinstatement ordered for train driver convicted of after-hours drink driving

A train driver employed by Sydney Trains for over fifteen years has had his dismissal overturned in the Fair Work Commission after it was determined his conviction for drink driving outside of hours was not a sufficient reason for his employer to dismiss him in the circumstances. The case provides good guidelines for employers who may be faced with employee behaviour and conduct that arises while not at work.

The situation commenced with the driver being stopped by NSW police on a public highway on 16 August 2020 while driving his private vehicle. He recorded a BAC of 0.206, which meant he was driving at more than four times the legal limit. He was rostered to work his shift as a train driver the following day.

He is not required to have a driver’s licence to drive a train.

After seeking advice, he informed his employer of the situation of August 2020 and was immediately suspended on full pay with the matter referred to the Sydney Trains’ Workplace Conduct and Investigation Unit (the WCIU).  Despite two positive alcohol results recorded while at work in January 2009 and August 2011, he was generally well regarded by his employer since then.

On 12 November 2020, he received a two year community services corrections order, a suspension from driving for six (6) months, and a requirement to have an interlock system installed on his vehicle for a further two years.

Despite his considerable remorse and voluntary admission into rehabilitation, including a commitment to total abstinence from alcohol, his employer dismissed him effective from 18 February 2021. Sydney Trains claimed that his behaviour in losing his driver’s licence was likely to cause serious damage to the employment relationship, damage their interests and that his conduct was incompatible with his duty as an employee.

Quite simply, Deputy President Bryce Cross rejected their arguments. As he commented,

“In my view, the Applicant’s conduct in the commission of the Offence lacked the requisite connection to his employment and therefore did not provide a valid reason for his termination. The Offence took place outside of working hours. The Applicant was not on call, and was not due to report for his next shift until the following morning.

The Deputy President further noted,

“I do not accept that the Applicant’s conduct viewed objectively, was likely to cause serious damage to his relationship with the Respondent… Further, I do not think that there was any reasonable basis for concluding that the Applicant’s conduct had damaged the Respondent’s interests, or had any reasonable likelihood of doing so. There exists no evidentiary material upon which such a finding could be made…”

In determining the dismissal was harsh, unjust and unreasonable, the Deputy President also dismissed Sydney Trains’ submission that reinstatement was inappropriate and ordered his continuity of service to be maintained as well as lost remuneration from the date of termination until his reinstatement.

Workforce Advisory recommends that such key terms as maintaining a ‘driver’s licence’ must be required through a core term of a contract if not required by the law.

A B v Sydney Trains (U2021/1757) 1 July 2021

For questions about employee behaviour outside work, convictions, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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