A dismissal for work-related conduct often hinges on a number of factors. Out-of-hours misconduct can be considered work-related if there is a connection to the worker’s employment. This connection can exist if the misconduct has the potential to damage the relationship between the worker and the employer. Or damage the reputation of the employer. Or if the misconduct is not compatible with the worker’s duty as an employee.
However, it is often hard for both employees and employers to discern when out-of-hours misconduct matches any of these scenarios. It can depend on the nature of the misconduct and a variety of factors surrounding it. Even the Fair Work Commission has trouble identifying a connection between out-of-ours misconduct and the worker’s job, as you will see in this article.
Here, we present two recent Fair Work Commission that highlight the type of misconduct that can be considered work-related. And therefore, constitute a valid reason for employment termination.
The unfair dismissal case Ventia Australia Pty Ltd v Pelly [2023] FWCFB 201 (1 November 2023) provides insight into what the Fair Work Commission deems work-related conduct justifying dismissal. It involved Martin Pelly, a firefighter for Ventia who shared explicit material to the “Sickos Video Sharing Group” on Facebook. The page was followed by a significant number of past and present Ventia staff. However, the firefighter had shared the content outside of work hours.
Mr Pelly was fired in September 2022 for sharing an OnlyFans video of a female in a bikini. He also posted a meme which featured the backs of three nude females with the caption “new, used and worn shock absorbers.” Mr Pelly had also posted content during work hours that made fun of his employer. While making a reference to a new fire engine, he posted a photo of an old bicycle with a fire extinguisher equipped to each of its sides.
Fair Work Commission found dismissal was unfair
At Mr Pelly’s unfair dismissal hearing in April 2023, the Fair Work Commission accepted that the fire truck photo was “disrespectful and offensive.” And therefore, it breached Ventia’s bullying policy. However, it was noted that the manager who decided to fire Mr Pelly later considered his actions as less serious than he originally thought.
The Fair Work Commission concluded that the manager had decided to sack him based on a “misunderstanding of the evidence.” And therefore, Mr Pelly’s actions were simply misdemeanours and his firing was unfair. He was subsequently reinstated. However, Ventia launched an appeal of the decision with the Full Bench of the Fair Work Commission.
Ventia argued to the Full Bench that the Fair Work Commissioner had not considered the “entire factual matrix” with its ruling. The company criticised the fact that he had not found that the Facebook were connected to Mr Pelly’s employment. Ventia said that the commissioner did not consider that 83 per cent of the “Sickos” group followers were employees or ex-employees. And that those who chose to leave the group were called “soft cocks” and “pussies.”
Ventia argued that content on the page was offensive to women, which damaged its prospects of recruiting female firefighters. The company also claimed that the Fair Work Commissioner had not properly assessed the video of the bikini-clad woman. Namely, Ventia said that the commissioner did not outline that the video was actually from OnlyFans and was pornographic, showing a woman performing sex acts. Ventia argued that the firefighter knew that colleagues would access this content during work hours.
Full Bench reviews unfair dismissal case
The Full Bench, however, did not side with Ventia. It found that the Fair Work Commissioner had not come to the wrong ruling. It acknowledged that many of the firefighter’s posts were “sexist,” “pornographic,” and could “create a hostile work environment particularly for women.” But the Full Bench found that there was no link between these posts and the firefighter’s job. And that Ventia’s inadequate social media and harassment training worked against its argument.
It was accepted that the firefighter could not be blamed for his colleagues accessing the content while at work. It was also found that there was no evidence of anyone being offended by the posts. Therefore, there was “no complaint to anchor the out of hours conduct to employment.”
The Full Bench accepted the “stupidity” of the Facebook group and that it was made up primarily of Ventia employees. However, it said that these were not “valid reasons for dismissing one or more of the participants.” The Full Bench clarified that for the firefighter to be fairly dismissed, it would require that his conduct exhibited “a connection to work.”
This could include “actual repugnance between the conduct of the participants [of the Facebook group] and their employment relationships.” Or an “impact on persons…that affects them at or in connection with work.” Or that “pornography or other objectively offensive material was viewed in the workplace where there was a real risk that it could have been seen by other employees.” Also, if the firefighter had used Ventia’s devices to “access and/or post offensive material in breach of a clearly articulated policy.”
The Full Bench, however, did state that the firefighter’s posts have “no place at or in any workplace.” And that it was particularly not appropriate conduct for a firefighter, given the nature of their work helping the community. The firefighter’s reinstatement was therefore upheld.
Train driver dismissed for out-of-ours drink-driving offence
The unfair dismissal case Sydney Trains v Bobrenitsky [2022] involved a train driver who was fired for an outside of work hours drink-driving conviction. Andrew Bobrenitsky had served with Sydney Trains for 16 years. On 15 August 2020, he met up with his cousin and the duo enjoyed a night of significant drinking. This was prompted by the death of Mr Bobrenitsky’s auntie.
The next day, he was pulled over on the Great Western Highway in Warrimoo, NSW for being under the influence. A PCA (Prescribed Concentration of Alcohol) breath test at the police station revealed he had a blood alcohol level four times the legal limit. This was considered a “high range” drink-driving offence.
The next morning, Mr Bobrenitsky returned to work and drove a train. But it was not until three days later that he told Sydney Trains in writing about his drink-driving offence. This was not the first drinking-related incident Mr Bobrenitsky had been involved in. On two separate occasions in 2009 and 2010, he had been required to attend counselling after he was found to have alcohol in his system while on shift.
Sydney Trains suspended Mr Bobrenitsky with pay while it conducted an investigation. On 13 January 2021, he was dismissed for serious misconduct. Namely, for “having been charged and subsequently convicted of a high-range PCA criminal offence.” On 3 March 2021, the Australian Rail, Tram and Bus Industry Union lodged an unfair dismissal application on Mr Bobrenitsky’s behalf.
Sydney Trains argued to the Fair Work Commission that Mr Bobrenitsky’s dismissal was reasonable. It contended that his “criminal behaviour” caused serious concern that he was “unable to safely perform his work.” Also, that his conviction “undermined the confidence of Sydney Trains in [his] decision making.”
Additionally, Sydney Trains felt that Mr Bobrenitsky’s decision to drive the morning after his heavy drinking “demonstrated a distinct lack of judgment, at odds with the standard of behaviour expected of [him].” On the other hand, Mr Bobrenitsky argued that his drink-driving conviction was not related to his work.
Fair Work Commission rules dismissal was unfair
At his initial unfair dismissal hearing, the Fair Work Commission ruled that Sydney Trains did not have a valid reason to fire Mr Bobrenitsky. It was found that there was not an adequate connection between his out-of-work conduct and his employment.
It also noted the harsh impact on Mr Bobrenitsky, given his difficulty in finding a new job. Sydney Trains was ordered to reinstate him. But not satisfied with that result, Sydney Trains lodged an appeal with the Full Bench of the Fair Work Commission.
Full Bench reverses unfair dismissal ruling
The Full Bench disagreed with the Fair Work Commissioner’s finding that Sydney Trains did not have a valid reason to sack Mr Bobrenitsky. It highlighted the fact that he had decided to drive a train less than a day after being charged with drink-driving. And that he had not done anything to ensure he was not still under the influence. Mr Bobrenitsky’s duty to inform Sydney Trains of any reason he could not drive a train was also highlighted. In addition to his previously failing breath tests in the past.
The Full Bench stated that the Fair Work Commissioner had focused on the wrong facts and had “failed to engage” with the evidence presented. It stated that the fact that the offence took place outside of work hours and that train drivers do not need a driver’s license were “peripheral matters” and “not determinative.” It was found that Mr Bobrenitsky had posed a real safety risk to train passengers. The Fair Work Commission’s original decision was therefore overturned.
Train driver appeals Full Bench decision
This was not the end of Mr Bobrenitsky’s unfair dismissal claim, however. In 2023 he appealed the Full Bench decision with the Federal Court of Australia. Mr Bobrenitsky argued that the Full Bench had not taken all matters into account in its final ruling, accusing it of legal unreasonableness.
The Federal Court noted that under the Fair Work Act 2009, the Full Bench had to appropriately consider whether Mr Bobrenitsky was informed about the reason for his sacking. And that he was given the opportunity to respond to the reason. The Federal Court found that the Full Bench did not consider these factors, and this therefore was a mistake in its decision-making process.
Procedural fairness not fully considered
The Fair Work Commission and the Full Bench had accepted that Mr Bobrenitsky had been informed of the reason for his firing. Also, that he had been given the chance to respond to it. However, the Federal Court found that the Full Bench had not explicitly referenced Mr Bobrenitsky’s procedural rights when determining if his sacking was harsh, unjust or unreasonable. It had only provided a passing reference, stating that he had been “afforded procedural fairness.”
The Federal Court stated that it was “impossible to see” what evidence the Full Bench relied upon to rule that Mr Bobrenitsky had been provided procedural fairness. It ruled that the Full Bench had not properly considered the question of whether he was afforded procedural fairness. The Federal Court was not satisfied that the Full Bench would not have made a different decision had it taken into account these “mandatory considerations.”
As a result, the Full Bench decision was rejected and Mr Bobrenitsky claim was ordered to be reheard. As of writing, the case I still awaiting judgement.
A Whole New Approach can provide the expert guidance needed to make sure your unfair dismissal claim succeeds. We have helped more than 16,000 employees to take action through the Fair Work Commission. AWNA are not lawyers. We understand the ins and outs of the Fair Work system and can help you understand how to hold your employer accountable.
If you have been unjustly terminated, accused of abandonment of employment, faced discrimination or sexual harassment, or experienced any other violation of your workplace rights. Call us today. But make sure to act quickly, as you only have 21 days from the date of your termination to file a claim.
We offer a no win, no fee service that ensures you only pay when your claim is successful. And your first consultation with us is free. Schedule a private consultation by calling us at 1800 333 666.
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