DECISION

Fair Work Act 2009
s.604—Appeal of decision

Sydney Trains
v
Andrew Bobrenitsky
(C2021/4195)

Appeal against decision [2021] FWC 3792 of Deputy President Cross at Sydney on 01 July 2021 in matter number U2021/1757

Overview

[1] Sydney Trains (Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (the FW Act), for which permission to appeal is required, against a decision and order issued on 1 July 2021 1 by Deputy President Cross (decision). The decision concerned an application by Mr Andrew Bobrenitsky (Respondent) for an unfair dismissal remedy made in respect of the termination of his employment with Sydney Trains, which took effect on 18 February 2021. The Respondent was dismissed for breaches of the Transport for NSW Code of Conduct (Code) related to a charge of high range drink driving on 16 August 2020, a day when he was not rostered to work.

[2] In the decision, the Deputy President found that the Respondent’s dismissal was harsh, unjust and unreasonable on the basis that it related to “out of work conduct that could never constitute a valid reason for termination” and that the dismissal was harsh in its effects upon the Respondent. The Deputy President ordered that the Respondent be reinstated to his position. The Deputy President also ordered that the Appellant pay to the Respondent lost remuneration for the period from his dismissal to the date of his reinstatement, less the notice period the Respondent received on termination, and that continuity of employment be maintained.

[3] The decision was stayed by consent on terms agreed by the parties. 2 Directions were set for the filing of material by the Appellant and the Respondent regarding permission to appeal and merits of the appeal. The appeal was heard by telephone on 30 September 2021. Both parties sought, and were granted, permission to be legally represented, on the basis that the Full Bench was satisfied that it would enable the matter to be dealt with more efficiently taking into account its complexity. The Appellant was represented by Ms E Raper SC with Ms C Bembreck, instructed by McCullough Robertson Lawyers. The Respondent was represented by Mr P Boncardo of Counsel, instructed by Mr P Matthews, Legal Officer, Australian Rail, Tram and Bus Industry Union.

Background Facts

[4] The circumstances which led to the Respondent’s dismissal are not in dispute and may be summarised as follows. The Respondent commenced employment with the Appellant on or around 14 February 2005. The Respondent was employed as a Train Driver, a Category 1 Safety Critical Worker pursuant to the National Standard for Health Assessment of Rail Safety Workers. At 8:20am on 16 August 2020, the Respondent was arrested by New South Wales Police on suspicion of impaired driving. He was taken to a police station and breath tested and returned a positive reading of 0.206 grammes of alcohol in 210 litres of breath, meaning that he was driving his vehicle at more than four times the legal limit for blood alcohol concentration. The Respondent was charged with high range drink driving, an offence for which he was liable to a period of imprisonment of 18 months. The Applicant was issued with a Court Attendance Notice for having a high range prescribed content of alcohol (PCA), first offence and his New South Wales Drivers licence was suspended.

[5] On the morning of 17 August 2020, the Respondent attended work in accordance with his roster and drove a train. On 20 August the Respondent informed the Appellant that he had been charged with the offence. On 24 August 2020 the Respondent was informed that he was suspended from duty with pay while the matter was referred to the Appellant’s Workplace Conduct and Investigations Unit (WCIU). On 15 September 2020, the WCIU wrote to the Respondent and after setting out particulars of the offence, put allegations to him, that he had breached “Section 3: Staff Responsibilities” and “Section 14: Criminal Conduct” of the Code. A written response was invited and was provided by the Respondent 9 October 2020.

[6] The Respondent stated in the response that the facts of the allegation were true and correct and that he had informed Sydney Trains of the charge as required. The Respondent also outlined various circumstances in mitigation. On 24 November 2020, the Respondent was informed that the allegations had been substantiated and that the Appellant had formed a preliminary view that dismissal was the appropriate disciplinary outcome. The Respondent was given an opportunity to respond to the preliminary decision and did so by letter dated (incorrectly) 18 October 2020. The response expressed the Respondent’s contrition, provided information about various mitigating factors relating to the Respondent’s personal circumstances and outlined steps the Respondent had taken to seek professional help in relation to issues with alcohol.

[7] On 13 January 2021, the Respondent was informed that the Appellant had formed a final view that the appropriate disciplinary action was dismissal. The Respondent applied for an internal review of the decision, but this was unsuccessful, and the Transport for NSW Disciplinary Panel affirmed the final decision to dismiss the Applicant with the dismissal taking effect on 18 February 2021.

[8] There was uncontested evidence before the Deputy President about two earlier occasions when the Respondent recorded positive results in random breath testing undertaken shortly before the commencement of his shift. The first occasion was on 23 January 2009 when a test undertaken by the Respondent at 7:08am provided readings of 0.04 grams of alcohol in 100 millilitres of blood and a second test at the Redfern Police Station at 7:47am returned a reading of 0.025 grams of alcohol in 100 millilitres of blood. This was over the prescribed concentration of alcohol for drivers as provided in the Drug and Alcohol Policy applicable at that time. As a result, the Respondent was removed from rail safety work and required to attend a drug and alcohol rehabilitation program.

[9] The second positive test occurred on 12 August 2011, when the Respondent undertook a passive breath test at 4:18am using an SD400 Alcolmeter device and returned a fail reading. A second test undertaken by the Respondent using a tube attached to the SD400 Alcolmeter, retuned a reading of 0.025 grams of alcohol in 210 litres of breath. This was over the prescribed concentration of alcohol for drivers as provided in the Drug and Alcohol Policy applicable at the time. A third test was conducted at 4:37am and the Respondent returned a reading of 0.000 using the SD400 Alcolmeter with the tube attached. Despite having returned a negative reading, the Respondent was stood down from train driving duties due to the earlier reading, his admission to having consumed alcohol on the previous day and observations of the testing officer that the Applicant had bloodshot eyes and a strong smell of alcohol on his breath.

The Decision Under Appeal

[10] The Deputy President commenced his decision by outlining the relevant background facts which he noted were not in dispute in any significant way. These facts are summarised above. The Deputy President also noted that the matter turned on the effect and importance of the facts. After setting out the events of 16 August 2021, and details of the investigation of the conduct, the Deputy President noted that on 20 August, after receiving advice about his offence, the Respondent notified the Appellant that he had been charged by completing a Notification of Charge Form, which included an instructional paragraph as follows:

“In accordance with the Code of Conduct, you must immediately inform the Director if you have been charged or convicted of:

•  A serious criminal offence (an offence punishable by imprisonment for six months or longer), or

•  Any other offence which prevents you from performing your full range of duties safely (for example losing your driver licence or drink driving offences.”

[11] The Deputy President also noted that the Respondent had not seen the Notification of Charge Form prior to his need to use the Form on 20 August 2021 and that the Form is not annexed to the Appellant’s Code of Conduct. After recording that the Appellant stood the Respondent down and notified him that a disciplinary investigation was to be conducted by the WCIU, the Deputy President set out the Respondent’s response to the allegations.

[12] The Respondent confirmed that the allegations regarding the Offence were “true and correct” and acknowledged that his action was “inexcusable.” The Respondent also provided various “reasons as to why the event took place” as well as “mitigating factors” which he argued should be considered by the Appellant. These factors can be summarised as follows. Numerous friends and family of the Respondent had passed away due to critical health related issues, including the Respondent’s aunt, a friend who took his own life and another friend who lost his battle with cancer. The Respondent also referred to the effect of the COVID-19 pandemic on his elderly parents who both require care. These events led the Respondent to suffer from “bouts of depression and anxiety” for which he sought professional help.

[13] On the night before the incident the Respondent met up with his cousin for the first time since the funeral of his aunt and consumed a large amount of alcohol as a coping mechanism. The Respondent then described making “a very, very poor and regrettable choice by getting behind the wheel of a car which resulted in myself being charged with high range PCA.” The response also stated that since the incident, he had “hit rock bottom” and asked for professional help, voluntarily undertaking a range of rehabilitative measures to deal with his issues with alcohol. The Respondent also stated his remorse and that termination of his employment would bring a 27-year career with the railways to an end. Further, the Respondent said that in light of the COVID-19 pandemic, it would be extremely difficult to obtain employment and that the effects of his unforgivable decisions would have a great impact on his family and his life.

[14] The Deputy President went on to note that on 21 November 2020, the Respondent was sentenced in the Local Court to a two-year community corrections order and required to pay a fine. His driver’s licence was suspended for six months and he was required to have an interlock device installed on his vehicle for two years after the return of his driver’s licence. On 24 November 2020, the Respondent was advised of the Appellant’s preliminary decision to terminate his employment. On 18 December 2020, the Respondent responded to the preliminary decision, annexing letters and reports from various medical and counselling services. evidencing his participation in alcohol recovery programs. Advice was also tendered from Blacktown Community Corrections that the Respondent had been abstinent from alcohol since the Offence and appeared committed to addressing his offending.

[15] The Deputy President also noted that during his employment, the Respondent was subject to all relevant policies, procedures and codes determined by the Appellant from time to time including, the Code of Conduct (the Code), the Transport Managing Conduct and Discipline Policy (the Discipline Policy) and the Drugs and Alcohol Policy (issued in 2014 and revised in 2017) (the Drugs and Alcohol Policy). Relevantly, the Code requires staff to immediately notify their manager if charged or convicted of a serious criminal offence (an offence committed in NSW that is punishable by imprisonment for six months or more). The Drugs and Alcohol Policy provides that the Appellant is a drug and alcohol-free workplace and that it implements a random drug and alcohol testing program which requires employees to have test readings showing zero concentration of alcohol in their blood.

[16] Further, the Deputy President noted that s.3 of the Discipline Policy provides that Inappropriate Conduct may result in Disciplinary Action up to and including the termination of employment with or without notice. The Policy provides various examples of Inappropriate Conduct including, but not limited to, conduct that causes a risk to a person’s health and safety, organisational reputation and/or business and criminal conduct, theft, fraud and/or assault.

[17] The Deputy President went on to discuss the safety critical nature of the Respondent’s employment. Pursuant to the Rail Safety National Law (NSW) (the RSNL), a rail transport operator, must ensure that each rail safety worker who is to carry out rail safety work in relation to railway operations has the competence to carry out that work. The Deputy President relevantly noted that:

“[27] Under the National Standard for Health Assessment of Rail Safety Workers (the National Standard), rail safety workers are categorised as either safety critical or non-safety critical workers. Safety critical workers are identified by the National Standard as:

“…workers whose action or inaction may lead directly to a serious incident affecting the public or the rail network. Their vigilance and attentiveness to their job is crucial, and they are therefore the main focus of this Standard.”

[28] Train drivers are further classified as Category 1 Safety Critical Workers, which are described as:

“…the highest level of Safety Critical Worker. These are workers who require high levels of attentiveness to their task and for whom sudden incapacity or collapse (e.g. from a heart attack or blackout) may result in a serious incident affecting the public or the rail network. Single-operator train driving on the commercial network is an example of a Category 1 task.”

[18] The Deputy President referred to the relevant section of the National Standard dealing with drug and alcohol screening which requires that rail transport operators ensure that rail safety operators are not impaired by alcohol or drugs when performing their work. The National Standard further provides that rail safety workers also have a duty not to perform rail safety work while impaired by alcohol or drugs.

[19] After dealing with the matters requiring preliminary determination under s 396 of the FW Act, the Deputy President turned to the question of whether the Respondent’s dismissal was harsh, unjust or unreasonable by reference to the mandatory matters for consideration in s.387(a)–(h) of the Act. After setting out the reasons relied on by the Appellant as stated in the letter to the Respondent of 13 January 2021 advising of the decision to terminate his employment, the Deputy President observed that those reasons “delineate two particular considerations on the question of whether there were valid reasons for dismissal” being: first, whether the offence was work related conduct; and secondly, whether the breach of policies nonetheless brings the offence within the realm of the employment relationship, and the breach of the policy is a valid reason.

[20] The Deputy President considered these matters separately. In relation to the first issue – citing Wakim v Bluestar Global Logistics 3 and Hussein v Westpac Banking Corporation4 – the Deputy President concluded that the Appellant did not have a valid reason to dismiss the Respondent on the basis that the offence lacked the requisite connection to the Respondent’s employment because it took place outside working hours, the Respondent was not on call and was not due to report for his next shift until the following morning (at [57]).

[21] The Deputy President also found that the Respondent’s conduct, viewed objectively, was not likely to cause serious damage to his relationship with the Appellant, noting that during her evidence Ms Bunting (the Appellant’s Deputy Executive Director, Sector 1 and 3 Train Crewing and Support) acknowledged that the Respondent had performed his duties “practically flawlessly” since 2011. At [59] the Deputy President observed that unlike the truck or taxi drivers referred to in Hussein, the Respondent did not need a valid drivers’ licence to perform the duties of a train driver and went on to state:

“I do not accept that a train is a ‘vehicle’ and I consider that the Respondent impermissibly strains to link the Offence to the Applicant’s duties by submitting that there exists and absence of judgment and decision-making in the [Respondent].”

[22] The Deputy President then went on to cite an observation from Rose v Telstra Corporation Limited (Rose v Telstra) 5 that the behaviour of the employee in that case was foolish and an error of judgement, but that employers do not have an unfettered right to sit in judgment on out of work behaviour of their employees. Finally, the Deputy President found that there was no reasonable basis to conclude that the Respondent’s conduct had damaged the Appellant’s interests and noted that the Appellant conceded that there was no more than a hypothetical risk of such damage.

[23] In relation to the second question associated with valid reason, the Deputy President found that while the Respondent had received training on the relevant policies of the Appellant, including the Code, Discipline Policy and Drugs and Alcohol Policy, the specific policy said to have been breached and which was relied on by the Appellant, was the Code, particularly clauses 3 and 14. The Deputy President found that the Code did not outline “a clear and coherent policy proscribing or regulating out-of-hours drink driving” and that the focus of clause 3 of the Code was on the reputation of the Appellant and how it can be affected by actions of employees at work and in certain circumstances, outside work. The Deputy President also found that the only reputational damage arising from the offence was hypothetical and a reasonable person reading that clause would not comprehend that it encompasses the conduct involved in the offence (at [63]).

[24] The Deputy President then set out clause 14 of the Code which specifies that a criminal offence must be one “which may impact on your ability to undertake part or all of the inherent requirements of your role” and must be committed at work or related to work. The Deputy President found at [66] that for reasons he had set out in relation to out of hours conduct, the offence and subsequent conviction and penalty had not affected the ability of the Respondent to undertake any part of his role and was not related in any way to work. The Deputy President also found that the adoption in the relevant enterprise agreement of the definition of serious misconduct as being charged with a criminal offence punishable by six or more months imprisonment, “does not in any way bolster clause 14 of the Code” which relates to whether an employee will be suspended with or without pay.

[25] Having made findings that these matters were not valid reasons for dismissal, the Deputy President dealt with the matters in s. 387(b)–(g) of the FW Act in a manner that was not disputed in the appeal, essentially finding that the Respondent was afforded procedural fairness encompassed within the considerations in s.387(b)–(e) and that the matters in s.387(f) and (g) with respect to the size of the Appellant’s enterprise and access to human resource management specialists or expertise was not a relevant circumstance. With respect to s.387(h) the Deputy President found that the Respondent’s age and relatively significant length of service and the difficulty he would face finding employment in the industry with his drivers’ licence restrictions, and that fact that such a licence is necessary to obtain employment with the only other employer of train drivers, being the rail freight industry, were relevant considerations. The Deputy President also noted that the Appellant’s reference in its submissions to evidence of the Respondent’s history of heavy drinking and alcohol dependence, may be an overstatement, and that it completely ignored the rehabilitative steps undertaken by the Respondent since August 2021. Further, the Deputy President rejected the submission that the Respondent had committed the offence notwithstanding that he went through an alcohol rehabilitation program in 2009 and received further counselling in 2011, after his earlier positive tests at work. At [78] the Deputy President stated his overall conclusion with respect to s. 387 in the following terms:

[78] After consideration of the relevant matters outlined in s.387 of the Act, I am satisfied, for the reasons outlined above, that the Applicant’s dismissal was ‘harsh, unjust and unreasonable’ within the meaning of s. 387 of the Act. His dismissal related to conduct that could only be considered out of work conduct which could never constitute a valid reason for termination. The Applicant’s dismissal was also harsh in its effects upon him.

[26] In relation to remedy, the Deputy President set out the Appellant’s submissions which were in summary, that if the Commission considered the dismissal was unfair, reinstatement would be inappropriate because it had lost trust and confidence in the Respondent. In particular, the Appellant contended that it had significant concern that the lack of judgement demonstrated by the Respondent on 16 August 2020 could readily transfer to a day when he was scheduled to drive a train and that to allow the Respondent to continue to act as a Train Driver would pose an unacceptable risk given his history of alcohol consumption prior to his shifts and with respect to driving a motor vehicle. The submissions also contended that there is a direct connection between the Respondent’s criminal conduct and his role as a train driver, as both involve driving a vehicle and in doing so, require an individual to exercise good judgment and decision making. The Appellant further contended that the Respondent’s decision to operate a vehicle the morning after an evening of heavy drinking demonstrates a lack of judgment at odds with the standard of behaviour expected of Category 1 Safety Workers and was not the first time that the Respondent had been affected by alcohol after a drinking session. In this regard, the submissions were that it was only because the Respondent had been stopped for a random breath test that he was prevented from driving a train in 2009 and 2011 with alcohol in his system.

[27] The Appellant also submitted that before the Deputy President that the Respondent’s conduct on 16 August 2020 was not aberrant and his previous alcohol readings while at work were not inherently different matters to the conduct that led to his dismissal. Further, the Appellant is recorded as submitting that the Respondent’s conviction indicated that he did not have the ability to modify his previous behaviour and the Respondent had engaged in that behaviour despite previous counselling and rehabilitation with respect to alcohol use. It was also submitted by the Appellant that:

•  it could not have the necessary confidence that the Respondent will comply with the Appellant’s Drug and Alcohol Policy;

•  Ms Bunting (the Appellant’s Deputy Executive Director, Sector 1 and 3) held concerns about the inconsistency of the Respondent being subject to a court order requiring an interlock device before driving a car and not a train and that the inability of Sydney trains to implement such a mechanism would mean that the Appellant would be left with less stringent safety measures than those imposed on the Respondent by the judicial system; and

•  the connection between the Respondent’s conduct and its connection with his work is such that the fundamental trust needed between the Respondent and the Appellant had been severed.

[28] After setting out the Appellant’s submissions, and concluding that the Respondent’s conduct constituting the offence, was out of work conduct that could not constitute a valid reason for termination, the Deputy President further concluded (at [83]) that the Appellant had not established a sound and rational basis for loss of trust and confidence in the Respondent and stated that: “Far from the asserted lack of confidence of compliance with the Drugs and Alcohol Policy, the evidence is clear that since 2011 the [Respondent] has consistently complied with that policy. The Offence was aberrant conduct which did not fall within the purview of the [Appellant].” The Deputy President went on to find that:

[84] While in committing the Offence the Applicant exhibited a distinct lack of judgment, the evidence does not support a conclusion that such lack of judgment is at all likely to be repeated. Since four days after the Offence, the Applicant has independently undertaken significant rehabilitation, of which the Respondent has been fully aware since 18 December 2020. In light of that significant rehabilitation, it is inexplicable that on 18 February 2021, the Respondent could decide to dismiss the Applicant from employment on the basis it has expressed.

[85] The Offence was a serious criminal matter, but it has been dealt with in the appropriate jurisdiction. It is not for this Commission to add in any way to the punishment that has been imposed upon the Applicant.

[29] In relation to remedy, the Deputy President ordered that the Appellant reinstate the Respondent, pay lost remuneration for the for the period from his dismissal to the date of his reinstatement and that the Respondent’s continuity of service be maintained.

The Appeal

[30] The appeal is made under s.604 of the FW Act. There is no right of appeal and an appeal may only be made with permission of the Commission. If permission is granted, the appeal is by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker. 6

[31] The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a “significant error of fact.” 7 Section 400(2) of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

[32] As a Full Bench of the Commission observed in Dafallah v Melbourne Health 8:

“Section 400(2) modifies the House v The King principles by limiting any review based on mistake of fact to a significant error of fact. Section 400 clearly evinces an intention of the legislature that appeals in unfair dismissal matters are more limited than appeals with respect to other matters under the Act.” 9

[33] The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the FW Act as “a stringent one”. 10 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.11 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest. These considerations were that:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 12

[34] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 13 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[35] The decision under appeal is of a discretionary nature. As the majority of the High Court held in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 14:

“ ‘Discretion’ is a notion that ‘signifies a number of different legal concepts. In general terms, it refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result.’ Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision maker is required to make a particular decision if he or she forms a particular opinion or value judgement.” 15 (citations omitted).

[36] The majority in that decision also held that a decision maker charged with making a discretionary decision has some latitude as to the decision to be made, and given this, the correctness of the decision can only be challenged by showing error in the decision-making process. 16 Such error has also been described as the discretion not being exercised correctly. 17 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Member at first instance in the absence of appealable error. The classic statement as to the approach to be taken in relation to whether there is error in a discretionary decision, and which is applied in appeals against such decisions under s. 604 of the FW Act, was stated by the High Court in House v The King as follows:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 18

[37] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 19 However, as the cases in relation to appeals against discretionary decisions establish, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

The Grounds of Appeal

[38] The six grounds of appeal in the present matter, include sub-grounds and assert errors of law and significant errors of fact, as follows:

1. The Deputy President erred in finding that Sydney Trains did not have a valid reason to dismiss Mr Bobrenitsky, in that the Deputy President:

a. erred in finding (at [78]) that Mr Bobrenitsky’s dismissal related to conduct that could “only be considered out of work conduct which could never constitute a valid reason for termination”;

b. should have found that there was a valid reason for dismissal in circumstances where the Deputy President:

i. found (at [6]) that Mr Bobrenitsky had engaged in criminal conduct, being driving a vehicle at over four times the legal limit for blood alcohol concentration;

ii. found (at [57]) that Mr Bobrenitsky was due to report for his next shift as a train driver the morning following his criminal conduct (and did in fact do so) and erred in failing to find:

1. on the basis of admissions from Mr Bobrenitsky, that he failed to take steps to ensure that he could operate the train safely that morning; and

2. erred in finding (at [57], [65]) that the conduct did not affect the ability of Mr Bobrenitsky to undertake any part of his role, was in any way related to work or had the requisite connection to his employment;

iii. found (at [8]) that by reason of his criminal conduct Mr Bobrenitsky may have been liable to a period of imprisonment of 18 months;

iv. found (at [39]) that the Sydney Trains Enterprise Agreement 2018 (EA) applied to Mr Bobrenitsky’s employment and defined “serious misconduct” as being charged with a criminal offence punishable by six or more months imprisonment;

v. found (at [15]) that Sydney Trains had advised Mr Bobrenitsky that he had engaged in serious misconduct within the meaning of the EA; and

vi. erred in finding, actually or in effect, (at [39]) that consideration of whether conduct was “serious misconduct” was limited to a definitional term;

c. erred in construing the Transport for NSW Code of Conduct (at [63]-[65], [68], [69]) in holding, actually or in effect, that clause 3 did not encompass Mr Bobrenitsky’s conduct and/or that the only connection to the workplace arose from the notification requirement in clause 14; and

d. erred in finding (at [57]-[60]) that Mr Bobrenitsky’s conduct did not constitute a valid reason for dismissal and/or acted on a wrong principle or misapplied the test for determining whether Sydney Trains had a valid reason by reference to the summary of principle in Rose v Telstra.

2. The Deputy President erred (at [78]) in finding that the dismissal was harsh, unjust or unreasonable in circumstances where the Deputy President:

a. erred in failing to find that there was a valid reason by reason of the matters in ground 1; and

b. should have found that the dismissal was not harsh, unjust or unreasonable in circumstances where the Deputy President:

i. found (at [26]-[28]) that Mr Bobrenitsky was a category 1 safety critical worker pursuant to the National Standard for Health Assessment of Rail Safety Workers;

ii. found (at [84]) that in committing the criminal conduct Mr Bobrenitsky exhibited a distinct lack of judgement;

iii. erred in failing to find that Mr Bobrenitsky’s conduct had a direct connection to his safety critical role and was at odds with the standard of behaviour required of a category 1 safety critical worker, including the requirement to understand and appreciate that he was intoxicated and should not be driving and to exercise significant judgement and decision-making, and repeats ground 1(b)(ii);

iv. found (at [31], [32], [34], [35]) that on two previous occasions Mr Bobrenitsky had recorded positive results to a random alcohol breath test at work, undertaken shortly before the commencement of a morning shift to drive a train;

v. found (at [33], [37]) that Mr Bobrenitsky was required to attend rehabilitation and received counselling with respect to alcohol following the two previous alcohol incidents;

vi. in light of (iii) to (v), erred in finding (at [84]) that Mr Bobrenitsky’s lack of judgement was unlikely to be repeated and that it was “inexplicable” that Sydney Trains could dismiss Mr Bobrenitsky from employment in circumstances where he had undertaken alcohol rehabilitation in 2020; and

vii. further or in the alternative to (vi), failed to give any or proper consideration to the fact that Mr Bobrenitsky’s criminal conduct occurred despite his previous alcohol rehabilitation or counselling.

3. The Deputy President further erred in finding that Mr Bobrenitsky’s dismissal was harsh, in that the Deputy President:

a. erred in finding (at [75]) that Mr Bobrenitsky’s age and difficulty in finding employment led to a conclusion that the dismissal was harsh; and

b. should have found that the dismissal was not harsh by reference to Mr Bobrenitsky’s age, his trade qualifications and by reason of his previous incidents involving alcohol in the workplace, including his previous alcohol rehabilitation and counselling.

4. The Deputy President made the following significant errors of fact when he:

a. erred (at [59]) in finding that a train was not a vehicle; and

b. erred (at [75(b)]) in finding that Mr Bobrenitsky would face difficulty finding employment and that a drivers’ licence was necessary to obtain employment in the freight rail industry, when there was no evidence of any such matters.

5. The Deputy President erred in concluding that Mr Bobrenitsky should be reinstated, in that the Deputy President:

a. erred in finding (at [83]-[84]) that Sydney Trains had not established a sound and rational basis for its loss of trust and confidence in Mr Bobrenitsky and that the evidence did not establish that Mr Bobrenitsky’s lack of judgement was likely to be repeated; and

b. should have found that reinstatement was not appropriate by reason of the evidence of Sydney Trains (at [81]) regarding its loss of trust and confidence in Mr Bobrenitsky (including its concerns that allowing him to continue to act as a train driver would pose an unacceptable safety risk), the admissions made by Mr Bobrenitsky during cross- examination and the matters at ground 2(b) above.

6. The Deputy President erred by failing to deal with, alternatively failing to provide any or any adequate reasons if the Deputy President dealt with and rejected them, Sydney Trains’ submissions that there was a valid reason for the dismissal, that the dismissal was not harsh, unjust or unreasonable and that reinstatement was not appropriate.

Appellant’s Submissions

Grounds 1 and 4(a)

[39] Appeal ground 1 centres on the Deputy President’s finding that the Respondent’s dismissal related to conduct that could “only be considered out of work conduct which could never constitute a valid reason for dismissal”. This finding is said to result from the Deputy President acting on a wrong principle or misapplying that test for determining whether the Appellant had a valid reason by reference to the summary of principle in Rose v Telstra and to be erroneous and indicative of a significant error of law that is jurisdictional in nature. 20

[40] In its oral submissions, the Appellant asserted that this error is relevant to all appeal grounds and that central to the assessment of whether there was a valid reason for the Respondent’s dismissal, is an understanding of the nature of the misconduct (in this case criminal conduct) and what it demonstrates to the Commission about the behaviour of the Respondent. The Appellant contended that the Deputy President adopted an impermissibly narrow interpretation of what is required to be undertaken in the identification of a valid reason for dismissal and failed to consider what was identified by the misconduct and exhibited by the behaviour that went to the heart of the contract, namely, the ability for a train driver to assess and know when they can and cannot safely drive. The Appellant asserted that this is the most inherent requirement of the position of a train driver.

[41] In this regard, the Appellant contended that the Deputy President misapplied the principles in Rose v Telstra, on the basis that he concentrated on the Respondent’s behaviour being outside work hours and a failed to consider what is in fact required of a train driver. In its outline of submissions, and oral submission in the appeal, the Appellant asserted, in relation to appeal ground 1, that the Deputy President’s finding that there was not a valid reason for dismissal was erroneous in circumstances where the Respondent admitted in cross-examination that he:

•  was rostered to work commencing at 5.15am on 17 August 2020, the day after his criminal conduct;

•  (contrary to his witness statement) was not in the middle of a block of “four book off days” when he engaged in the criminal conduct;

•  did in fact drive a train on 17 August 2020;

•  did not take any steps to determine whether there was any alcohol remaining in his system that morning other than relying on his “own judgement”, despite that he had been charged with high range drink driving less than 24 hours previously; and

•  did not advise the Appellant, via his manager or supervisor, of the charge on 17 August when he returned to work. This was despite knowing that on two previous occasions he had been randomly breath tested at work and had found to have alcohol in his system, while not believing at the time that he was affected by alcohol.

[42] While the Respondent submitted that there is no evidence that he had alcohol in his system when he attended work the day after being criminally charged, the Appellant criticised this assertion given the Respondent’s history. This error was submitted to have affected the findings both in relation to valid reason and remedy. The Appellant also contended that the Deputy President did not refer to the Appellant’s submissions or the Respondent’s admissions on these matters, instead finding, erroneously and contrary to much of the evidence, that the Respondent’s criminal conduct did not affect his ability to undertake any part of his role, was not in any way related to work, and did not have the requisite connection to his employment, including because the Respondent was not “on call, and was not due to report for his next shift until the following morning.” 21 The Appellant argued that in light of the Respondent’s evidence in the proceedings before the Deputy President, this finding was incorrect and the Deputy President’s failure to refer to these matters suggests that he did not consider the Appellant’s case in this regard, which constitutes a jurisdictional error.

[43] It was further contended by the Appellant that the enterprise agreement (EA) which applied to the Respondent, by definition, recognised “serious misconduct” as including being charged with a serious criminal offence punishable by imprisonment of six or more months. 22 The Respondent’s criminal conduct met this definition, as the conduct rendered him liable to a period of 18 months imprisonment, and was found to be a “serious criminal matter.”23 The Appellant’s preliminary dismissal decision on 24 November 2020 found that by his criminal conduct the Respondent had engaged in serious misconduct within the meaning of the EA and that the seriousness of that misconduct was aggravated by the Respondent’s role as a Train Driver.

[44] The Appellant submitted that the Deputy President effectively read down or limited the meaning of “serious misconduct” in the EA to a definitional term, applicable only to the circumstances in which an employee would be suspended with or without pay during an investigation. 24 This was an interpretative error and constituted a failure on the part of the Deputy President to give effect to the EA’s terms, as a whole and read in context, including where the EA provided that an employee may be terminated for “serious misconduct”.

[45] The Appellant’s preliminary decision to dismiss the Respondent also found that the Respondent had breached clauses 3 and 14 of Code. 25 Clause 3 of the Code required the Respondent to “behave in a lawful, professional and reasonable manner and always act in the best interests of Transport”, and provided that the reputation of the Appellant could be affected by conduct outside the workplace in certain circumstances.26 Clause 14 required the Respondent to immediately notify his manager of his criminal conduct and stated that “disciplinary action” may be taken against him if there was evidence that he had committed a criminal offence related to work. The final dismissal decision of 13 January 2021 upheld the preliminary decision and found that the Respondent’s conduct amounted to a “significant and serious breach.”27

[46] The Appellant submitted that the Deputy President’s erred 28 insofar as the Deputy President found that a reasonable person reading clause 3 of the Appellant’s Code “would not comprehend that it encompassed the conduct involved in” the criminal offence.29 The Respondent’s criminal conduct on 16 August 2020 was captured within clause 3 of the Code. The Deputy President’s finding that the connection between the Respondent’s criminal conduct and the workplace arose only from his obligation to notify the Appellant of that conduct,30 was similarly erroneous. The Respondent did not, contrary to the Deputy President’s finding, “promptly comply” and notify, rather he attended and performed work, less than a day after he was charged and did not notify the Appellant of that charge until three days later.

[47] The Appellant argued that the Deputy President’s statement that the definition of serious misconduct in the EA did not “bolster” clause 14 of the Code is demonstrative of this error. 31 Further asserting that there was no need to “bolster” this clause as the obligation and breach were plain. The Appellant submits that in any event, it was entitled to rely upon the Respondent’s conduct as providing a valid reason for dismissal, even if it did not amount to a breach of the Code.32 The last point, raised by the Appellant in its written submissions in relation to appeal ground 1, is that the Deputy President erred in finding that for conduct to be “work-related conduct” constituting a valid reason, it must, in effect, have occurred during “work hours.”33 The Appellant contended that the Deputy President made the following erroneous findings:

a. the Respondent’s criminal conduct lacked the requisite connection to employment where that conduct took place out of hours and the Respondent was not due to report for work until the following morning 34

b. a train was not a “vehicle”; and

c. the Appellant “impermissibly strain[ed] to link to the offence to the [Respondent’s] duties”. 35

[48] With respect to the Deputy President’s finding that a train is not a vehicle, the Appellant argued that not only is this plainly incorrect, it is significant because it is demonstrative of the Deputy President’s erroneous view that the Appellant’s case was predicated on the Respondent’s criminal conduct (including the consequent suspension of his drivers’ licence) when the Respondent’s lack of judgement and decision-making, and the connection of these matters with his employment in a safety critical role as a Train Driver, was in issue. The Appellant submits that this error was also significant because it was foundational to the Deputy President’s overall finding that the dismissal was harsh, unjust or unreasonable, and to the issue of reinstatement. 36 The Appellant argued that this error satisfies the test in s. 400(2) of the Act.37

[49] It was also submitted that the Deputy President’s failure to consider these matters is evident from his misapplication of the reasoning in Hussein v Westpac Banking Corporation 38 (Hussein) in focusing on whether the Respondent required a valid driver’s licence in order to undertake his role, rather than addressing the Appellant’s submissions that the reasoning in Hussein was applicable because of the Respondent’s fundamental lack of decision-making and judgement, which was a clear requirement of his safety critical role.

[50] Further, the Appellant submitted that the Deputy President failed to take into account material admissions made by the Respondent in cross-examination regarding the connection between his criminal conduct and employment as follows:

a. when the Respondent drove a car on 16 August 2020 he exhibited a significant lack of judgment in driving intoxicated, was not thinking clearly and knew that his behaviour was reckless;

b. he knew that driving while intoxicated meant that he could injure himself or someone else;

c. he had to exercise good judgment when performing his duties as a Train Driver including responding to events quickly, being alert and not fatigued, so as to ensure the safety of himself and his passengers;

d. when driving a train it was important that he not have alcohol in his system because this could affect his ability to drive a train safely;

e. it was important a Train Driver is self-aware as to whether they are fatigued or otherwise not able to drive a train, including being affected by alcohol, given that they are not supervised while driving, can be rostered at less than 24 hours’ notice and often work very late at night or early in the morning;

f. Train Drivers are required to self-report if they feel that they cannot drive safely, and

g. the Appellant must have trust and confidence that the Respondent will self-report if he is unable to drive a train safely.

[51] The Appellant contended that the failure of the Deputy President to refer to these matters, which were centrally relevant to the Appellant’s submissions as to a valid reason for dismissal, suggests that the Deputy President did not consider the Appellant’s case in this regard. The failure to refer to these matters also demonstrates that the Deputy President erred in finding that the Respondent’s conduct did not constitute a valid reason for dismissal by reference to the summary of principle in Rose v Telstra, by adopting a narrow view of those factors which did not engage with the Appellant’s submissions regarding the unacceptable risk to safety that arose from that conduct. 39 Further, the Deputy President erred in finding that there was no evidentiary material to substantiate a finding of damage to the Appellant’s interests where:

a. there is no requirement for there to be evidence of actual damage but rather, conduct that gives rise to a material risk of damage to an employer’s interests may be conduct which attracts the legitimate concern of the employer; 40 and

b. in circumstances where the Respondent had admitted that his criminal conduct could have caused damage to the reputation of both the Appellant and Transport for NSW. 41

[52] Such an admission was properly made where it is a given that the Appellant’s reputation is likely to suffer where one of its train drivers is viewed by the criminal justice system to be of such a risk on the road that his licence is disqualified for six months and he attends work the day after being charged with a high range drinking offence involving him being four times over the prescribed limit for alcohol in his system.

[53] In oral submissions at the hearing of the appeal, Ms Raper SC for the Appellant emphasised that the central aspect of the appeal grounds concerns the Deputy President’s erroneous finding that there was no connection, and could never be a connection, between the Respondent having driven illegally and his obligation to have sufficient judgment to know when he can and cannot drive a train safely. The Appellant submitted that the necessary connection is enlivened by the fact that the Respondent is a professional train driver of such impute that by virtue of the national safety legislation, is subject to much higher than usual standards in terms of having no alcohol content in their system at all and subject to additional offences if this standard is not met, by virtue of the importance of their position to be able to convey thousands of passengers safely. In relation to appeal ground 1 particularly, is the fact that by virtue of the Respondent being a rail safety critical worker category 1, each day the Respondent is required to drive a train, his acts or omissions and his exercise of judgment or misjudgement, affects not only his own health and safety but potentially thousands of commuters in New South Wales.

[54] In relation to the Deputy President’s finding that the Respondent’s conduct was not likely to cause serious damage to his relationship with the Appellant, it was submitted that there was nothing in the Deputy President’s reasoning about the evidence of Ms Bunting in relation to what constitutes the damage, other than a reference to one portion of the transcript where Ms Bunting refers to the Respondent performing his duties “practically flawlessly” since 2011. It was submitted that the evidence of Ms Bunting in this regard was about operational stops between 2011 and 2020 and not about the confidence that Sydney Trains could have in the ability of the Respondent to self-assess and be in a position to make decisions of paramountcy with respect to safe operations, after the incident in August 2020. This error is also reflected in the Deputy President’s reference to the lack of a valid driver’s licence, rather than consideration of what the criminal conduct says about the role of the individual that can be affected by that behaviour.

[55] A further indication of the Deputy President’s failure to consider this connection is said to be his finding that a train is not a vehicle. The Respondent’s submission that this reference simply indicates that the Deputy President was considering the Road Transport Act, was not the subject of debate in the case at first instance nor in the appeal. This finding, to the extent it is relied on, infects the error with respect to consideration of what must constitute a valid connection with employment. That error is the failure to consider that there existed a pattern of conduct by which the Respondent would operate a machine – whether a vehicle or a train – when it was not safe for him to do so and exhibited a lack of judgement and decision making about the very issue at the centre of his category 1 status as a safety critical worker. As a result, the Deputy President failed to distinguish the facts in the present case from those in Rose v Telstra which concerned a fight between two individuals involved in telecommunications, which was very different from a driving offence with respect to a professional driver.

[56] In relation to Ms Bunting’s evidence about damage to the Appellant’s interests, it was submitted that there was no consideration given by the Deputy President to the most critical aspect of that evidence, about the risk to safety that arises from the inability of a professional train driver to be able to self-assess and know when they can and can’t drive by virtue of being affected by alcohol and the Respondent’s statutory obligation to ensure the safety of the rail network. When this evidence is considered, there is no evidentiary material on which a finding could have been made by the Deputy President that the Appellant appropriately conceded that there was no more than a hypothetical risk with respect to damage.

[57] Reference was also made to what was said to be the Deputy President’s narrow and erroneous reading of clauses and 14 of the Code to the effect that the only relevant connection between the Respondent’s criminal conduct and the workplace was his obligation to notify the Appellant of the charge. This was said to be a further indication that the Deputy President took an impermissibly narrow view of the principles relating to out of work conduct. It was also submitted that the Deputy President’s error in relation to finding that there was not a valid reason for dismissal infects the rest of his reasoning including the totality of the finding in relation to s.387 and the issue of relief.

[58] In oral submissions in reply, the Respondent said that with respect to Rose v Telstra, there is nothing in that decision that rises to the need for a degree of prescription, in code, contract or otherwise, that an employee will be the subject of sanction for being involved in a drink driving offence, and no prescription is required in order for the Commission to decide that the criminal conduct outside work is necessarily linked to misconduct. Engaging in driving under the influence of alcohol is directly connected to the job of a professional driver and is directly analogous to the circumstances in Hussein. In response to the submission that there was no contention about the Respondent’s attendance at work on 17 August, in the proceedings at first instance, reference was made to the cross-examination of the Respondent in the hearing. It was also pointed out that the Respondent had initially said he was not at work on 17 August and that the fact of him being at work on that date did not come into issue until the hearing when the Respondent conceded under cross-examination that he was not on a block of four days off but had been rostered to commence work at 5:15am on 17 August 2021.

Ground 2

[59] In relation to appeal ground 2, the Appellant submitted that the Deputy President erred by finding that the dismissal was harsh, unjust or unreasonable, despite holding that the Respondent was a Category 1 Safety Critical Worker and that in committing the criminal conduct the Respondent had exhibited a “distinct lack of judgment”. 42 Contrary to this finding, for the reasons in Appeal Ground 1 above, the Respondent’s conduct provided a “sound, defensible and well founded” reason for his dismissal, including in light of his disciplinary history.

[60] Relevantly, the Deputy President found that the Respondent’s lack of judgment on 16 August 2020 was unlikely to be repeated and that it was “inexplicable” that the Appellant could dismiss the Respondent from employment in circumstances where he had undergone a short period of alcohol rehabilitation in 2020 which was relied upon at his sentencing hearing. 43 The Appellant submitted that such a finding was contrary to the overwhelming weight of the evidence, not only because it failed to consider the Appellant’s submissions on these matters but because the Deputy President had found that on two previous occasions (in 2009 and 2011) the Respondent had recorded positive results to a random alcohol breath test at work, undertaken shortly before the commencement of a morning shift where he would drive a train, and had been required to attend rehabilitation or counselling with respect to alcohol but despite this, had engaged in the criminal conduct on 16 August 2020.44

[61] The Appellants stated that the evidence before the Deputy President with respect to the previous incidents in the workplace involving alcohol was that (as admitted by the Respondent in cross-examination):

a. both events had occurred in the early morning, shortly before he was scheduled to drive a train;

b. he believed (erroneously) when he attended work that he was able to drive a train and was not above the prescribed limit for alcohol, despite drinking the previous day;

c. attending work with a level of alcohol above the prescribed limit raised a safety concern for himself and the Appellant;

d. despite attending the RailCorp Drugs and Alcohol Rehabilitation program in 2009 he again attended work at above the prescribed limit for alcohol in 2011, and received counselling at management level for that conduct;

e. neither counselling was engaged in at his own volition;

f. he was required to attend a medical session before recommencing work as a Train Driver and had told the doctor he had no problem remaining abstinent from alcohol and would remain abstinent in the long term (but did not do so);

g. the alcohol counselling in 2020 occurred because of his criminal charges; and

h. he accepted that the Appellant must have trust and confidence that he would not have alcohol in his system when he attends for work as a Train Driver and that it could not have that confidence given his past behaviour.

[62] The Appellant submitted that the Deputy President failed to determine whether the dismissal was harsh, unjust or unreasonable by taking into account these material admissions, and the Appellant’s submissions regarding the same. Instead, the Deputy President placed excessive weight on the Respondent’s short, recent rehabilitation following his criminal conviction, without reference to the previous misconduct, counselling and attempts at rehabilitation. 45 In oral submissions it was emphasised that the finding that the dismissal was harsh, unjust or unreasonable was influenced by the same failure to link the Respondent’s lack of judgement to what was integral in his contract of employment. It was also emphasised that the finding that the Respondent had engaged in extensive rehabilitation was contrary to the weight of the evidence, to the effect that the Respondent had only engaged in rehabilitation for a period of three months and the evidence of this was the same evidence that the Respondent provided to the Magistrate in respect of his criminal conviction.

Ground 3

[63] In relation to appeal ground 3 the Appellant submitted that the Deputy President’s findings that the Respondent’s age, length of service and difficulty in finding employment in the rail industry with his drivers’ licence restrictions meant that the dismissal was harsh, reflect a failure to consider properly “other relevant matters” pursuant to s.387(h) of the Act, and therefore led to error. 46 The Deputy President did not address the Appellant’s submissions that Respondent was not yet 50 years old, had trade qualifications (including admitting that he was a qualified electrical fitter and had an advanced certificate in electrical engineering) and was qualified to drive a variety of trains including locomotives on freight lines. Instead, the Deputy President found that the Respondent would have difficulty finding employment with his drivers’ licence restrictions and the “fact that such a licence is necessary to obtain employment in the only other employer of Train Drivers, being the freight rail industry”, when there was no evidence whatsoever to substantiate any such finding, and where the Appellant had expressly drawn the Deputy President’s attention to this lacuna in written and oral submissions.47 This was a significant error of fact in circumstances where it provided a primary basis for the Deputy President’s finding that the dismissal was harsh.48

[64] The Deputy President also failed to consider the Appellant’s arguments that the dismissal was not harsh by reason of the Respondent’s previous incidents involving alcohol in the workplace, which fell to be considered pursuant to s.387(h) of the Act (see Appeal ground 2 above).

[65] In oral submissions relating to appeal ground 3, the Appellant said that the submissions for the Respondent in relation to alleged difficulties finding alternative employment, were made from the bar table and could not constitute evidence. To the extent that the Respondent now suggested that the submissions had not been rebutted, there was no obligation for the Appellant to rebut an assertion in circumstances where there was no evidence to support it, but notwithstanding this the Appellant drew attention in its written and oral submissions to the lack of evidence in this regard.

Ground 6

[66] With respect to appeal ground 6, the Appellant submitted that a fair review of the Deputy President’s decision reveals that he failed to give genuine and realistic consideration to the matters he was called upon to consider including whether the Appellant had a valid reason for dismissal (Appeal ground 1 and 4(a)), whether the dismissal was harsh (Appeal grounds 3 and 4(b)) and whether reinstatement was appropriate (Appeal ground 5). These failures to give adequate reasons are said to be apparent on the face of the decision.

[67] The Appellant also submitted that the Deputy President erred by failing to deal with, or failing to provide any or adequate reasons for not accepting submissions centrally relevant to the Appellant’s case. The failure to give reasons was an error of law because it resulted in a denial of procedural fairness. 49 The Deputy President was required to deal with the Appellant’s submissions and give adequate reasons addressing them because they were material to the legal questions at issue.50 The Deputy President had an obligation to give reasons which articulated the essential grounds for reaching his decision and to address the material issues of fact and law in a manner which disclosed the steps leading to the result. 51 At a minimum, the Deputy President’s reasons were required to facilitate an appeal, and it was essential that the reasons for resolving a point critical to the contest between the parties was exposed. The reasons did not meet this standard and an inference is therefore available that the matters were not addressed and determined by the Deputy President. 52

Ground 5

[68] For the reasons identified in relation to ground 6 above, the Appellant submitted in relation to appeal ground 5, that the Deputy President failed to deal with or failed to provide any or adequate reasons regarding why reinstatement was appropriate. Relevantly, the Deputy President failed to have regard to the evidence of Ms Bunting regarding the Appellant’s loss of trust and confidence in the Respondent. While the Deputy President extracted the Appellant’s submissions on reinstatement in his reasons, he did not address any of the matters raised therein to explain the basis for his finding that the Appellant had not established a sound and rational evidentiary basis for the loss of trust and confidence. Instead, properly characterised, the Deputy President’s reasons indicate that in making his findings on reinstatement he erroneously conflated the matters relevant to determining valid reason with the test for whether reinstatement was appropriate in the circumstances. This constituted an error of law.

[69] It was also contended that the Appellant’s submissions on reinstatement ought to have been accepted by the Deputy President, including by reason of the admissions made by the Respondent during cross-examination regarding his criminal conduct, his previous workplace incidents involving alcohol and where his criminal conduct occurred despite him previously receiving alcohol rehabilitation and counselling.

[70] In oral submissions the Appellant contended that the Deputy President misapprehended Ms Bunting’s evidence about the “flawless” performance by the Applicant of his duties after the last incident involving alcohol in 2011. Ms Bunting had qualified her evidence by stating that other than the two incidents involving alcohol and the incident that led to the Respondent’s dismissal, he had performed his duties without issue. The question to Ms Bunting and her response did not deal with her loss of trust and confidence in the Respondent and whether she could have confidence that he would act with care and diligence when deciding whether he can safely perform his duties.

Permission to appeal

[71] The Appellant contended that it is in the public interest for permission to appeal to be granted, including by reference to the test in s.400(1) of the Act.28 The errors identified by the Appellant constitute jurisdictional error and permission to appeal should be granted on that basis.29 Further, the appeal raises issues of important and general application, including where the decision is disharmonious with other decisions of the Commission dealing with an employer’s right to rely on out of hours conduct and whether such conduct can “ever” provide a valid reason for dismissal. Indeed, it is evident from the reasons that the Deputy President’s findings either demonstrate a misunderstanding of the evidence, or the applicable law, but either way constitute significant errors which went to the Commission’s jurisdiction to order a remedy. There is a public interest in ensuring that the Commission’s jurisdiction is properly exercised in this regard.

[72] It was also submitted that the decision manifests an injustice because the Deputy President failed to give any or any adequate reasons for rejecting the Appellant’s submissions, which is an error of law resulting in a denial of procedural fairness. 53 Additional issues of serious importance and general application said to be raised in the appeal relate to the safe operation of the Appellant’s rail network, in circumstances where a Train Driver is a Category 1 Safety Critical Worker, and the construction of the Code, which applies to a number of employers in NSW, is a matter of general importance and not limited to the interests of the Appellant in these proceedings.

Disposition of the appeal

[73] Ms Raper contended in oral submissions in reply that the matter should not be remitted if the appeal is upheld, where the Respondent’s entire submission has been on the basis that there is no error and no inadequacy of reasons or failure to consider any reasons nor any notice with respect to a submission of that nature. It was further submitted that the Respondent, now on notice of the inadequacy of its own evidence about harshness, is effectively seeking a second go, in circumstances which should not and cannot arise in relation to an appeal of this nature, with respect to the submissions that have been made.

[74] While it was accepted that failure to notify of the charge was not part of the case below, it was relevant that the Respondent attended work on 17 August 2021 and took no steps to ensure that he could safely perform his duties. The Respondent did this in circumstances where he knew that he was four times over the legal limit the previous day and had been the subject of legal sanction, and where the Respondent had previously done the same thing – attended for work without properly self-assessing his capacity to drive a train. In response to the submission that the Commission should accept as evidence, a submission about the difficulty the Respondent faced obtaining alternative employment, it was submitted that the Appellant was not obligated to call evidence to rebut that submission. Further, the Appellant did not accept the submission and pointed out the deficiency in the evidence in its written and oral submissions at first instance. The acceptance of the Respondent’s submissions in relation to this matter was a significant error of fact and cannot be cured by the Respondent now being permitted to put on evidence which it chose, for whatever reason, not to put on at first instance.

Respondent’s Submissions

The decision at first instance

[75] The Respondent submitted that the Deputy President determined that the Respondent had been unfairly dismissed on two independent bases:

1. There was no valid reason for the purposes of s 387(a) of the Act as a result of him committing an offence contrary to s 110(5) of the Road Transport Act 2013 (NSW) of driving a motor vehicle 54 whilst there was a high-range prescribed concentration of alcohol present in his breath or blood (PCA offence) on 16 August 2020, which was a day when he was off work; and

2. The dismissal was otherwise harsh.

[76] The Deputy President concluded that it was appropriate that the Respondent be reinstated, particularly having regard to his significant (and successful) rehabilitative efforts following the PCA offence. According to the Respondent, the Deputy President’s decision involved an orthodox application of well-settled principles, including those set out in Rose v Telstra 55 for determining whether out of work conduct can ground a valid reason for dismissal and was otherwise an unimpeachable exercise of the evaluative task assigned to him to determine whether the dismissal was harsh and whether reinstatement was appropriate. The appeal does not raise any issues of general or wider importance. The errors asserted by the Appellant are without substance and, in large measure, constitute complaints about the result of the Deputy President’s analysis rather than any error in the decision-making process. The stringent test for permission to appeal under s.400 of the FW Act for decisions under Part 3-2 of the FW Act is not surmounted and permission to appeal should be refused. If permission to appeal is granted, the appeal should be dismissed.

[77] According to the Respondent, the Appellant properly accepted before the Deputy President that the principles enunciated in Rose v Telstra applied in determining whether the Respondent’s out of work conduct could constitute a valid reason for his dismissal. It asserted that the PCA offence was likely to seriously damage the employment relationship and was otherwise incompatible with his duties as an employee.16 The Appellant’s case was that driving of a motor vehicle with high range prescribed concentration of alcohol was directly connected to the appellant’s role as a train driver, as it required him to exercise appropriate judgment and decision-making including being able to assess whether he was fit to work and free from alcohol. It contended that the out of work conduct had the capacity to damage the Appellant’s interests “if a driver was found to be driving a train or operating a vehicle while under the influence of alcohol.” This contention was confined to the driving of a train in the Appellant’s final oral submissions.19 The appellant also relied on breaches of sections 3 and 14 of its Code of Conduct.20

[78] The Respondent also pointed to the fact that in closing oral submissions at first instance, the Appellant conceded that there was no evidence that the Respondent would drive a train whilst either affected by alcohol or whilst having alcohol in his blood or breath, or that the PCA offence had caused it any reputational damage. Rather, it acknowledged that its case was premised on a hypothetical risk of these matters coming to pass.

[79] The Respondent highlighted that the Deputy President outlined (correctly) in relation to s.387(a) of the FW Act that the issue for determination was whether the Respondent’s out of work conduct was “work related conduct” or otherwise constituted a breach of the Appellant’s policies and extracted the oft-recited test enunciated in Rose v Telstra (at [48]) and correctly summarised the Appellant’s contentions in relation to s.387(a) at [49]–[51]. The Deputy President concluded that the out of work conduct did not provide a valid reason for dismissal at [57]-[60] as:

1. the conduct occurred outside of working hours and the respondent was not due to attend for work until the following morning;

2. there was no capacity for the PCA offence to cause serious damage to the Respondent’s relationship with the Appellant;

3. it was wrong for the Appellant to reason that there was a link between the offending and the performance by the Respondent of his work as a train driver by asserting that the offence exposed a lack of judgement and decision-making; and

4. there was no reasonable basis, nor any evidence, that the out of hours conduct could have damaged the Appellant’s interests.

[80] As to the asserted breaches of the Code, the Deputy President held that the out of work conduct did not fall foul clause 3 of the Code as there was no evidence that the appellant had or would suffer reputational damage (at [63]). Moreover, there was no breach of clause 14 of the enterprise agreement, as the offence did not relate to work nor did it impact the Respondent’s ability to undertake the inherent requirements of his role (at [64]-[65]). The Deputy President held that there was no sound or rational evidentiary basis for the Appellant’s asserted loss of trust and confidence in the Respondent and that the Respondent had successfully rehabilitated himself following the offending and his lack of judgment was unlikely to be repeated (at [83]-[84]).

Grounds 1 and 4(a)

[81] In relation to appeal grounds 1 and 4(a), involving the assessment of whether there was a valid reason for the dismissal, the Respondent submitted that consideration for the purposes of s 387(a) of the FW Act involves the making of an evaluative assessment in the nature of the exercise of a discretion. Consequently, appealable error of the kind described in House v The King must be established to make out this ground of appeal. 56 The Respondent also submitted that grounds 1(a) – (c) are, in substance, complaints that the conclusion reached by the Deputy President that the out of work conduct did not satisfy the test set out in Rose v Telstra was wrong and do not raise any House v The King error, and aver a preference for a particular result, which is not a proper basis for interference with the discretionary decision under s.387(a).24

[82] Further, the Respondent submitted that the Appellant’s assertion that the Deputy President erred by not finding that there was a valid reason for dismissal in circumstances where the Respondent reported to work the morning after the PCA offence and did not take steps to determine whether he still had alcohol in his system, must also be rejected. In this regard it was submitted that there was no evidence that the Respondent was affected by alcohol or had alcohol on his breath or in his blood when he attended work on 17 August and there was no explanation in the Appellant’s submissions in the appeal as to why Respondent’s self-assessment that he was free of alcohol was insufficient or improper. The Respondent reported the charge forthwith after seeking legal advice from his solicitor and Union. The notion he could or should have known about the maximum penalty for an offence contrary to s.110(5) has an air of unreality. Further, the Appellant did not rely on any failure to report the charge on 17 August at the hearing below and should not be permitted to depart on appeal from the manner in which it ran its case at first instance. 57 The Appellant in fact accepted that the Respondent reported the charge appropriately. The contention that the Deputy President erred by finding that the Respondent promptly complied with the notification requirement, should also be rejected for this reason.

[83] Further, the Appellant’s submission that the Deputy President erred in finding that the Respondent’s criminal conduct did not affect his ability to undertake his role and was not related to his work, should also not be accepted. The Respondent contends that there was not a scintilla of evidence that the PCA offence impacted in any real or practical way on the Respondent’s performance of his train driving duties on 17 August or at any other time.

[84] The Respondent also contends that whether or not the definition of “serious misconduct” under the EA applied generally or only in relation to suspension, or whether the Respondent’s dismissal was consistent with clause 19.1 of the EA, were immaterial in answering the statutory question of whether there was a valid reason for dismissal. 58 In any event, properly construed the definition of “serious misconduct” under clause 33.5 of the EA applied only to that clause, which prescribed a disciplinary procedure which was required to be followed and permitted the Appellant to suspend an employee for behaviour which answered the bespoke definition of serious misconduct provided by that clause. The Appellant’s submissions in relation to its findings that the Respondent breached clauses 3 and 14 of the Code, and the Deputy President’s conclusions about the obligations and breaches of the Code, should also be rejected. Neither clauses 3 nor 14 of the Code was breached by the Respondent.

[85] Relevantly, clause 3 of the Code informed employees that they needed to be aware that the Appellant’s reputation could be affected by their actions at work and in certain circumstances their conduct outside the workplace. This portion of the Code was informational and said nothing about when or how out of work conduct would affect the Appellant’s reputation. The general requirement to “behave in a lawful, professional and reasonable manner” was plainly directed to at-work conduct. It would be illogical for an employee to be required to behave “professionally” or “reasonably” outside of work. Clause 14 of the Code required an employee to notify the Appellant if charged or convicted of an offence which may impact their ability to undertake part of all the inherent requirements of their role and to immediately notify the appellant of being charged with or convicted of a “serious criminal offence”. Clause 14 was informational, detailing that where there was sound evidence an employee had committed a criminal offence at work or related to work, disciplinary action may be taken against them. For the reasons detailed by the Deputy President, the PCA offence did not “relate to work”.

[86] The Appellant’s submissions that the Deputy President erred by finding that “work related conduct” must occur during work hours, was said by the Respondent to misstate the Deputy President’s reasons. The Deputy President did not determine that misconduct needed to happen during work hours to satisfy the test enunciated in Rose v Telstra. The Respondent also contended that the Appellant’s submissions that Deputy President erred by finding that a train is not a vehicle, should not be accepted. The Deputy President was, at [59] of the decision, responding to the Appellant’s “somewhat novel submission” that there was a connection between the offending and the respondent’s work as a train driver because the train is a “vehicle”. The Respondent submits that the point being made by the Deputy President was that the licence disqualification and interlock orders applied to “motor vehicles” not trains (which were not motor vehicles for the purposes of s 4 of the RT Act). In oral submissions it was also contended that the Deputy President’s observation that a train is not a vehicle, was a “springboard” for the conclusion reached about the linkage between the offence and the duties of the Respondent. Properly read, the Deputy President is simply referring to the decision in Hussein where it was observed that a truck driver or taxi driver requires a drivers’ licence to perform their duties.

[87] In any event, the Deputy President well-understood the Appellant’s case that there was a requisite connection between the drink driving offence and the Respondent’s performance of work because it reflected on the Respondent’s decision-making capacities. The Deputy President summarised this submission [50] of the decision and considered and rejected it at [59]. He was right to do so for the reasons detailed in Rose v Telstra which he extracted. Acceptance of the proposition advanced by the Appellant would permit an unfettered ability on employers to pry into the private lives of their employees on the dubious premise that what an employee does in their private time may cause the employer to have qualms about their “decision-making” at work. 59

[88] Ground 1(d) which asserts that the Deputy President erred in finding that there was no valid reason for the Respondent’s dismissal, and/or acted on a wrong principle or misapplied the test for determining whether the Appellant had a valid reason for dismissing the Respondent by reference to the summary of the principle in Rose v Telstra, is without substance. The Deputy President correctly extracted the test detailed in Rose v Telstra at [48] of the decision and applied it at [57]-[60]. Further, the Deputy President properly understood and engaged with the principles explained in Rose v Telstra.

[89] The Appellant’s submission that the Deputy President failed to consider the Respondent’s admissions under cross-examination, should also not be accepted. The Respondent’s concession under cross-examination that his offending could have caused damage to the Appellant’s interests is not to the point. Rose v Telstra requires that the conduct actually damages the employer’s interests. 60 There was no evidence, in any event, of any real or likely damage to the Respondent’s interests caused by the PCA offence.

[90] In oral submissions at the hearing of the appeal, Mr Boncardo for the Respondent, contended that what was detailed in Rose v Telstra is that for out of work conduct to constitute a valid reason for dismissal, there needs to be identified a breach of an express or implied term of the contract of employment of such gravity or importance, to constitute a rejection or renunciation of the contract of employment. It was contended that the first time the Appellant contended that the out of work conduct was the Respondent getting into a car on his day off after consuming too much alcohol, went to the heart of the contract of employment, was in the appeal proceedings. That contention was not raised before the Deputy President and was not outlined in the Appellant’s written submissions in the appeal. It was also contended that there had been no attempt to identify any express or implied term that was breached by the Respondent when he engaged in the drink driving offence on 16 August 2021 and that should be the end of the analysis for the purpose of applying the Rose v Telstra Test.

[91] It was also contended that the connection between the Respondent’s contract of employment and the out of hours conduct is not direct and is entirely hypothetical, resting on the proposition that what the Respondent may do in his spare time will be repeated when he attends work. In contrast with the decisions in Hussein 61 and Wakim v Bluestar Global Logistics62 there was no contravention of the Respondent’s contract of employment in the present case. In relation to the Respondent’s attendance at work on 17 August 2021, it was submitted that there was no contention that the Respondent was in breach of the Appellant’s drug and alcohol policy and no submission (other than a passing reference) that it was a valid reason for dismissal that the Respondent did not take steps other than performing a self-assessment, to determine whether he could safely operate a train on that date. Further, it cannot be contended that the Deputy President failed to consider that the Respondent did not inform the Appellant of his criminal conduct as soon as possible, in circumstances where the Appellant accepted in the proceedings at first instance that the Respondent notified of the conduct as he was required to do under the Appellant’s policy.

[92] In response to the submission of the Appellant that there was a propensity on the part of the Respondent to attend for work in breach of the drug and alcohol policy, it was contended that there was no breach in 2011, on the basis that the Respondent had a zero reading following a preliminary reading of 0.25 and the breach in 2009 was right at the margin. As a result there was only one breach of the policy over ten years prior to the termination of the Respondent’s employment. This was said to put context into the manner in which the Deputy President dealt with valid reason and reinstatement. In relation to the Deputy President’s finding at [59] that a train is not a vehicle, it was submitted that the finding was made in the context of considering, and rejecting, the central submission of the Appellant that there was an absence of judgement and decision making exhibited by the offence. While that may be a matter with which the Full Bench in the appeal disagrees, it is a finding that was open to the Deputy President in the broad evaluative exercise he was undertaking and which cannot be overturned, in the absence of identification of error of the kind described in House v The King.

[93] Mr Boncardo also submitted that the central issue in relation to ground 1 is whether it is sufficient to link out of hours criminal conduct to employment, that there is some analogy between what the employee does out of work and what they do on a day-to-day basis at work. Specifically in the present case, the question is whether because the Respondent was not sober at some time on Sunday night and had a significant quantity of alcohol in his blood early on Monday morning, that he should have done more to ensure that he did not have alcohol in his blood on Monday morning when he attended for work. In circumstances where the Respondent attended work and undertook a self-assessment before he drove a train, there is nothing more that he could have done. This is particularly so in circumstances where it was not put in the proceedings at first instance, that the Respondent could have asked his supervisor to conduct a test to establish whether had alcohol in his system, before driving a train on 17 August 2021.

[94] In relation to the Appellant’s code of conduct, it was submitted that clause 3 focuses on what an employee does at work or while interacting with persons engaged in the Appellant’s business and none of the provisions of that clause impose obligations with respect to out of work conduct. Accordingly, there was, and cannot be, any suggestion of a breach of clause 3. Even if the clause does impose an obligation not to engage in conduct out of work that effects the reputation of transport agencies, there is no evidence that there was any action on the part of the Respondent that had that effect. Clause 14 of the policy imposes reporting obligations and is also informational in that it sets out that disciplinary action may be taken against an employee if they commit a criminal offence at work or related to work and had no application in the present case.

Ground 2

[95] The Respondent submits that ground 2 raises no House v The King error. Rather, it is an amalgam of complaints that: (1) the outcome of the Deputy President’s ultimate evaluative, subjective and discretionary decision that the dismissal was unfair was wrong; and (2) he should have given different or alternate weight to particular evidence. It is elementary that an error in the discretionary decision-making process premised on a failure to weigh, or the giving of undue or inadequate weight, cannot establish error of the kind detailed in House v The King. 63

[96] In oral submissions, Mr Boncardo highlighted that the evidence before the Deputy President included a haematology report from mid-April showing that the Respondent had not been misusing alcohol in the past six months of testing and it was not correct to submit that the Respondent had only a three-month period of proven rehabilitation.

Ground 3

[97] The Respondent contends that ground 3 is a complaint about the conclusion reached by the Deputy President that particular factors led to the dismissal being harsh. As to ground 4(b), the Respondent’s representative detailed in both written submissions and during final submissions that the respondent would not be eligible for employment with any freight rail providers. 64 This was not controverted by the Appellant, who was represented by counsel, either in written submissions or oral submissions in reply. The Commission and its predecessors have long acted on uncontroverted factual statements from the bar table. There was no error in the Deputy President acting on this unrebutted factual statement and it is not open to the Appellant to complain about the Deputy President reaching conclusions based on factual statements made from the bar table by the Respondent which were uncontested by the Appellant. Finally, the assertion that the Deputy President did not consider the appellant’s arguments concerning the respondent’s past breaches of the Drug and Alcohol Policy is belied by his express consideration of them at [77] of the decision.

Ground 4(b)

[98] In relation to ground 4(b) the Respondent’s evidence about difficulties in seeking employment in the rail freight industry was not contested in the proceedings before the Deputy President.

Ground 5

[99] In relation to appeal ground 5, the Respondent contended that s.390 of the Act confers a broad and largely unconstrained discretionary power to order reinstatement when an applicant has been found to be unfairly dismissed. 65 Consequently, error in the decision- making process of the kind described in House v The King must be established by the Appellant to challenge the Deputy President’s conclusion that reinstatement was appropriate. Further, any challenge to fact finding in relation to reinstatement can only be entertained on the ground that the error was a significant one in light of the provisions of s.400(2) of the FW Act.

[100] The Respondent submits that ground 5 does not plead any House v King error but rather, cavils with the conclusions reached by the Deputy President at [83]-[85] of the decision and seeks, in effect, to have the Full Bench substitute its own conclusions that the relationship of trust and confidence between the Appellant and Respondent had broken down irreparably. It is inappropriate for the Full Bench to intervene in the making of a discretionary decision on the basis that it would have arrived at a different conclusion to the Deputy President.

[101] There is no substance to the complaint that the Deputy President failed to properly have regard to the evidence of Ms Bunting which (baldly) asserted that the Appellant had lost trust and confidence in the respondent. It is noteworthy that Ms Bunting conceded during cross- examination that the respondent had been involved in only a single incident during his 14-year career and that he had performed his duties “flawlessly” since 2011. Moreover, she clarified the basis of her asserted loss of trust and confidence in the Respondent as concerning whether he would comply with the appellant’s Drug and Alcohol Policy in the future. The Deputy President dealt specifically and directly with this at [83]-[84] of the decision, noting that the Respondent had (as was uncontroversial) complied with that policy since 2011 and since the offence had undertaken significant rehabilitation.

[102] There is no substance to the assertion that the Deputy President did not properly consider the matters raised in the Appellant’s submissions on reinstatement. The Deputy President was not required to explicitly deal with each and every discrete contention raised.44 In any event, [40] and [83] of the decision demonstrate that he had regard to the submissions made by the Appellant. The Deputy President also specifically dealt with the (erroneous) assertion that the Respondent’s out of work conduct was not “aberrant” and the gravamen of its submission that it had lost trust and confidence in the Respondent because it could not trust him to not attend work with alcohol in his system (at [84]-[85] of the decision).

[103] The Deputy President also did not impermissibly conflate the reasons for dismissal (which the Deputy President had held were not valid ones) and the issue of whether reinstatement was appropriate as asserted by the Appellant. In circumstances where there is no valid reason for an employee’s dismissal, this will be a most material consideration in determining whether reinstatement is appropriate. The evaluative assessment of whether reinstatement is appropriate focuses on whether there can be a sufficient level of trust and confidence restored to make the relationship workable. In the circumstances, the Deputy President’s conclusion that reinstatement was appropriate was reasonably open to him.

Ground 6

[104] In relation to appeal ground 6 concerning failure to give reasons, the Respondent submitted that to afford the parties procedural fairness, the Deputy President was not obliged to spell out every detail of his reasoning process. Moreover, there was no requirement that the Deputy President refer to every piece of evidence and every submission advanced. He was required to share his reasons for resolving points critical to the contest between the parties. In other words, he had to identify the bases for his decision that there was: (a) no valid reason for dismissal; (b) the dismissal was otherwise harsh; and (c) reinstatement was appropriate. The Respondent submits that the Deputy President plainly did this and “entered into” the issues raised on these matters and resolved them. The undeveloped submission by the Appellant that the reasons did not meet the “standard required” should be rejected.

[105] The contention that the Deputy President committed jurisdictional error by failing to “deal with submissions” made by the Appellant also lacks merit. It was not incumbent on the Deputy President to refer to every submission made to him in the decision. Further, he plainly understood and “entered into” the case advanced by the Appellant on both valid reason, harshness and reinstatement. This argument was also said by the Respondent to involve a misapprehension of the species of jurisdictional error described in Dranichnikov v Minister for Immigration and Multicultural Affairs 66. A constructive failure to exercise jurisdiction is not established by the mere failure by a decision-maker to address an argument or submission. Rather, it must be demonstrated that the Deputy President failed to understand and determine the case the appellant advanced. Meagher JA has recently explained that an appellant advancing an argument that a decision-maker failed to consider a “substantial, clearly articulated argument” must show that the submission said not to have been considered raised a substantial (in the sense of being clearly material) argument or question which the decision-maker failed to address in determining the appellant’s case or claim.67 The Appellant cannot establish this high hurdle.

Permission to appeal

[106] The Respondent submits that permission to appeal should be refused. If permission is granted, the Respondent submits that the appeal should be dismissed. In oral submissions, Mr Boncardo contended that if the Full Bench is against him in relation to permission to appeal, and in the event that the decision is quashed, the matter should be reheard, for the following reasons. Firstly, the Respondent ran a harshness case at first instance, which the Deputy President did not deal with to any great extent. Secondly, there is no analysis in the decision of whether the dismissal was unfair, on the basis of whether it was disproportionate given the Respondent’s rehabilitation efforts. Reference was also made to submissions made in the hearing at first instance relating to the Respondent’s remorse, and his level of insight. Mr Boncardo further contended that the rehearing should be in relation to merits because these matters went directly to the harshness of the dismissal and were not analysed by the Deputy President because of his conclusion in relation to valid reason.

Consideration

Permission to appeal

[107] The Full Bench is satisfied that the grant of permission to appeal in this matter is in the public interest. We are of the view that the appeal concerns issues of general application concerning whether out of hours conduct engaged in by employees is a valid reason for dismissal, for the purposes of the consideration required by s.387(a) of the Act. In this regard, we consider that the decision is disharmonious with other decisions of the Commission in relation to this issue.

[108] We also consider that the subject matter of the appeal raises issues of importance and general application, in connection with the Appellant’s safe operation of its rail network. This is because the Respondent is a Category 1 critical safety worker by virtue of being a train driver, who is subject to the Transport for NSW Code of Conduct, which applies to several employers in New South Wales.

[109] Permission to appeal is therefore granted in accordance with s.604(2) of the Act.

The appeal grounds and the decision

[110] It is apparent that the Deputy President considered that the Respondent’s dismissal was unfair on two related bases: first the Deputy President considered that the dismissal “related to conduct that could only be considered out of work conduct which could never constitute a valid reason for dismissal.” 68 Although the Deputy President did not specify which part of the harsh, unjust or unreasonable trilogy that this finding related to, we assume that the Deputy President found that the dismissal was either unjust, because the Respondent was not guilty of misconduct that justified dismissal or unreasonable because it was decided on inferences that could not reasonably have been drawn from material before the employer, or both. Second, the Deputy President found that the dismissal was harsh, in its effects upon the Respondent.

[111] A central issue in grounds 1 and 2, is whether the Deputy President erred in his finding that the out of hours conduct of the Respondent was not a valid reason for dismissal. The conclusion in relation to valid reason is also central to ground 3 insofar as it affected the balancing exercise that the considerations in s.387 required the Deputy President to undertake in reaching his overall conclusion in relation to whether the dismissal was unfair. Further, that conclusion is relevant to the Deputy President’s consideration of remedy.

[112] For reasons articulated below, we consider that the Deputy President’s conclusion that there was no valid reason for the Respondent’s dismissal was erroneous because it was based on a misapplication of the principles relating to valid reason and out of hours conduct. This constitutes an error of principle of the kind identified in House v The King. We also consider that the Deputy President’s finding in relation to valid reason was contrary to the overwhelming weight of the evidence and that the test in s.400(2) is satisfied. Further, we are of the view that these errors have infected the Deputy President’s conclusions in relation to remedy, which for reasons we also articulate below, were based on other significant errors of fact.

[113] We first consider the approach to determining whether there is a valid reason for dismissal for the purposes of s.387(a) of the FW Act, particularly in the context of out of hours conduct as a valid reason for dismissal.

The approach to determining whether there is valid reason for dismissal

[114] The principles relevant to consideration under s.387(a) of whether there is a valid reason for dismissal, are well established. Relevantly, a valid reason is one that is sound, defensible and well founded, and not capricious, fanciful, spiteful or prejudiced. When the reason for dismissal is based on the misconduct of the employee, the Commission must, if it is in issue in the proceedings, determine whether the conduct incurred and what it involved. The conduct must be such that dismissal is a sound, defensible and well-founded reaction. In undertaking this consideration, the Commission is required to determine whether the employer had a valid reason to dismiss an employee based on the evidence before it and is not restricted to the reasons relied on by the employer at the time of the dismissal.

[115] As the conduct which resulted in the Respondent’s dismissal occurred outside the workplace and out of hours, it was necessary for the Deputy President to apply the principles for assessing whether such conduct was a valid reason for dismissal. To properly consider whether the Respondent’s out of hours conduct was a valid reason for dismissal, the Deputy President was required to make findings about the nature of the conduct and its relationship to the inherent requirements of the Respondent’s role as a Category 1 Safety Critical Worker pursuant to the National Standard for Rail Safety Workers.

Out of hours conduct – Rose v Telstra

[116] The approach to considering whether out of hours conduct is a valid reason for dismissal was set out in the decision of Vice President Ross (as his Honour then was) in Rose v Telstra. 69 That decision has been extensively applied in decisions of the Commission dealing with dismissal on the basis of out of hours conduct, and was recently restated in the decision of a Full Bench in Newton v Toll Transport Pty Ltd.70 In Rose v Telstra, the authorities in relation to dismissal of an employee based on out of hours conduct were extensively considered. The facts in Rose v Telstra were that Mr Rose (an employee of Telstra) was dismissed because of his conduct in relation to an altercation with a work colleague, which occurred outside working hours, in hotel accommodation, in circumstances where both employees were working away from their homes and were being paid an accommodation allowance by their employer, Telstra. At the time of the incident, neither employee was wearing a Telstra uniform and they were not “on-call”. Telstra argued that the consequences of the altercation included damage to public property in circumstances where the hotel owner knew that the two persons involved were Telstra employees, which tarnished the reputation of the Company and brought it discredit within the small country town where the altercation occurred.

[117] After traversing the origins of the Anglo – Australian contract of employment, his Honour observed that: “The modern law of employment has its basis on contract not status. An employee’s behaviour outside working hours, will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contract of employment.” His Honour then referred to several cases to illustrate this point. It is instructive to consider those cases in some detail in the order they are dealt with in Rose v Telstra.

[118] The first was the decision of the High Court in Commissioner for Railways (NSW) v O’Donnelly. 71 In that case an employee who had been charged with manslaughter (unconnected with his employment) and subsequently acquitted, was suspended from duty without pay, while the charge was pending. The issue for determination was whether the employee had been duly suspended under s. 82 of the Government Railways Act, which allowed inter alia for dismissal or suspension of employees guilty of misconduct or breaking of any rule, by-law or regulation of the railway service, and whether that employee was entitled to his wages for the period. The Court held that the employee was not duly suspended in accordance with the relevant provision and was entitled to payment. The plurality (Rich, Dixon and McTiernan JJ) held that to suffer an arrest on a criminal charge does not, per se, fall within the category of “misconduct or breaking any rule, by-law or regulation of the railway service” so that the suspension was not pursuant to the relevant provision.72 Latham CJ observed that unless misconduct was found, no action under the provision could be taken against the employee.73 Dixon J said that to be the subject of a criminal charge is not misconduct, and that: “properly understood, the provision had no application where it is desired to remove the officer from duty pending the hearing of the criminal charge of which the head of the branch is not prepared to say the officer is guilty”. In that case, the relevant connection required to be established (and which was not established) was that the out of hours conduct met the definition of misconduct in the relevant statute.

[119] The next decision referred to in Rose v Telstra is that of Lawrence DP in HEF of Australia v Western Hospital, who made the following observation:

“The conviction of an individual for a criminal offence does not necessarily have any effect upon that person’s employment. The question of the relevance of a conviction or an employee's alleged misbehaviour to the employee's work should be considered in terms of whether or not the employee has breached an express or implied term of his or her contract of employment. Whether events occurring outside the actual performance of work will be relevant to the employment relationship will vary from case to case. For example, an accountant who has committed an act of dishonesty (for which he may have been charged and convicted) in the course of some activity outside his employment might be said to have breached a term of his contract of employment.” 74

[120] Reference was then made to the case of F.C. Shepherd & Co Ltd v Jerrom, 75 where it was held that if attendance at work for a significant period is precluded because an employee has been convicted of a serious offence and imprisoned, then the contract of employment may be brought to an end by the operation of law due to frustration. The decision of Staindl J in Hussein76 was also cited in Rose v Telstra. Hussein involved an employee of Westpac who was convicted of credit card fraud relating to another bank and therefore outside his work. It was observed in Rose v Telstra that depending on the circumstances, a conviction for a criminal offence arising from or out of work activities may lead to termination. In this respect, the following view of Staindl JR was cited:

“... a conviction on a drink-driving charge which occurred outside work hours would not be relevant to the employment of many people. However, it would be of critical relevance to a truck driver or taxi driver. It seems to me that an appropriate test is whether or not the conduct has a relevant connection to the employment.” 77

[121] In Hussein Staindl JR set out the passage from the decision of Lawrence DP in HEF of Australia v Western Hospital (above) together with the following additional passages from that decision:

“The contractual right of an employer to dismiss an employee summarily on the ground of serious and wilful misconduct is a right which is limited to cases where the misconduct has a relevant connection with the performance of his or her work as an employee. The position has been summarised by E I Sykes and H J Glasbeek, Labour Law in Australia, (1972), p 71 in the following terms:

‘In relation to criminal or quasi-criminal offences, it appears that commission of one or these at the place of work is enough. Where, however, the criminal conviction is in respect of an act which is committed away from the place of work and not in the hours of duty, it appears that the crucial test is whether the criminal conduct touches the course of duties of the workman or his abilities in relation to such duties.’

In dealing with such issues in unfair dismissal claims, two questions will need to be asked. First, did the employee do the things which are alleged against him? Second, did the action have any relevant connection to the performance of his duties as an employee? These two questions have relevance to the present case because it will be necessary to determine if the employees misbehaved themselves, as alleged by the hospital, and whether any misbehaviour had a relevant connection with the performance of their duties as employees.”

The test proposed by McCallum, Pittard and Smith in Labour Law: Cases and Materials (2nd Ed, 1990), is to a similar effect: they see the crucial issue as being whether the criminal conduct ‘touches the employment’. (at p 140).” 78

[122] Staindl JR held in Hussein that there was a sufficient connection between the employee’s work with Westpac and his conviction for credit card fraud on another bank, in circumstances where the employee was a migrant liaison officer with Westpac, in a position of responsibility, honesty and trust, in particular giving advice to members of the Turkish community.

[123] Also cited in Rose v Telstra is the decision of the High Court in Blyth Chemicals v Bushnell, 79 in relation to the duty of fidelity and good faith owed by an employee to an employer. That case involved a person employed as a company manager who, during his employment, without knowledge or consent of the employer, became chairman of directors for life and or principal shareholder with a controlling interest, of a company which was a potential rival to his employer. Notably in that case, their Honours Justices Dixon and McTiernan said that conduct including that which is destructive of the necessary confidence between employer and employee is a ground of dismissal and went on to observe:

“But the conduct of the employee must itself involve the incompatibility, conflict or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.” 80

[124] Their Honours Justices Starke and Evatt also said in that case that:

“The mere apprehension that an employee will act in a manner incompatible with the duty of fidelity does not afford a ground for dismissal; he must be guilty of some conduct in itself, incompatible with his duty and the confidential relation between him and the employer.” 81

[125] Reference was also made in Rose v Telstra to the decision of Spender AJ in Cementaid (NSW) Pty Ltd v Chambers,  82 in which it was held that to establish a breach by an employee of the duty of fidelity “an actual repugnance between the employee’s acts and his relationship with his employer must be found.”83 Other cases cited in Rose v Telstra were the decisions in McManus v Scott-Charlton84 and R v Railways Board; Ex parte Haran.85 The former case involved an employee privately engaging in sexual harassment of a co-worker and the latter case, an assault on railway premises committed by one employee against other employees when the perpetrator was off duty. In both cases the employees had: engaged in the behaviour; been directed not to do so again; and breached the direction. In McManus Finn J held that the direction in relation to out of hours conduct was lawful because the harassment was a consequence of the employment relationship between the victim and the perpetrator and the harassment had, and continued to have, adverse effects on the employer’s business. In Haran, the conduct was found to have affected the management and conduct of the railways. It was also noted that in both cases, the employees’ out of hours conduct damaged the interests of their employers.

[126] Similarly, in Wall v Westcott, 86 an employee having an affair with his employer’s wife, as revenge or an affront to the employer, in a small community, constituted misconduct justifying dismissal. Various cases involving sexual or other privately engaged-in misconduct by persons holding special positions – police officer, university academic, solicitor and public servant – were also referenced in Rose v Telstra. The common theme was that there may be a link between out of hours conduct engaged in by employees holding special positions, and their employment, by virtue of those employees engaging in out of hours conduct which is inconsistent with the inherent requirements of their positions or their ability to perform their duties.87 It was observed in Rose v Telstra, that in each of these cases there was a clear connection between the out of hours conduct engaged in by the employee and the employment, by virtue of the conduct being incompatible with the employee’s duty as an employee (which may extend beyond a duty to the employer because of the special nature of the position) or likely to cause serious damage to the employment relationship.

[127] Cases involving fighting were also considered in Rose v Telstra. The facts in Re Dispute - Transfield Pty Ltd Re: Dismissal of Union Delegate 88 were that a union delegate sought out and accosted a foreman in a hotel, in non-working time, about a dispute on a worksite. Justice Sheehy concluded that there was a connection between the assault and the employment of the union delegate, on the basis that the attack would tend to undermine the authority of management because it foremen would fear that there could be further assaults against them.

[128] In AWU-FIME Amalgamated Union v Queensland Alumina Limited, 89 two employees dismissed for fighting in a crib room, in breach of company policy, were dismissed for a valid reason notwithstanding that the crib room was a “sanctuary from work.” Justice Moore concluded that the purpose of the employer’s policy was two-fold: to avoid situations where employees may injure themselves in a dangerous working environment and to ensure that employees exercised a measure of discipline when responding to tensions that might arise with other members of the workforce. In Australian Workers Union (WA Branch) v Goldsworthy Mining Ltd,90 Commissioner Martin refused to reinstate an employee dismissed for creating a disturbance in the mess, by behaving in an aggressive manner, being abusive to mess workers and taking “physical action” against a cook. While unclear in the report of the decision, this conduct probably occurred on the employer’s premises or in premises provided by the employer.

[129] In North Australian Workers’ Union v Newcastle Protective Coating Pty Ltd, 91 employees were dismissed for conduct engaged in at accommodation provided by the operator of a mine at which they were working. Commissioner Portus observed that:

“Misconduct in the normal course concerns conduct on the job and not conduct of the employee away from the job, but this is not the case where the employee's conduct occurs in accommodation quarters provided by the employer as part of the contract of employment. Similarly in this case misconduct can extend to conduct in accommodation provided not by the employer but by a third party under arrangement with the employer. In this case it was made clear to the employees in their contract of employment that their duties extended to proper use of the accommodation facilities.

... I find that the five employees were properly dismissed from their employment. Their actions were directly related to a term of their contract of employment. Furthermore, it was a reasonable term to include in the contract particularly when one bears in mind that Groote Eylandt is an aboriginal reserve.”

[130] In Rose v Telstra, his Honour determined that there was no reasonable basis for concluding that Mr Rose’s conduct had damaged his employer’s interests and nor was his conduct, viewed objectively, likely to cause serious damage to his relationship with his employer. Accordingly, there was no valid reason to terminate Mr Rose’s employment. His Honour concluded with the following observation:

“I do not doubt that the applicant's behaviour on 14 November 1997 was foolish and an error of judgment. He made a mistake. But employers do not have an unfettered right to sit in judgment on the out of work behaviour of their employees. An employee is entitled to a private life. The circumstances in which an employee may be validly terminated because of their conduct outside work are limited. The facts of this case do not fall within those limited circumstances.”

[131] More recently, in Newton v Toll Transport Pty Ltd (Newton), 92 cited by the Respondent in its submissions in the present appeal, a Full Bench of the Commission considered an appeal by an employee dismissed for engaging in a physical altercation with a co-worker, out of working hours. The facts of the case (extracted by the Full Bench from the decision at first instance) were that the employee, Mr Newton, a truck driver employed by Toll Transport, was on leave and attending meetings organised by the Transport Workers’ Union, in his capacity as a Union Delegate. Toll paid for and/or organised the airfares, transportation, accommodation, and meals for its employees who attended the conference, in accordance with an arrangement the Company had with the Union. Mr Newton engaged in the fight with another employee (Mr Chambers) who was also attending the conference. Both Mr Newton and Mr Chambers were dismissed and applied for remedies for unfair dismissal. Both applications were dealt with by Deputy President Boyce who in separate decisions, dismissed Mr Newton’s application finding that he was not unfairly dismissed and upheld Mr Chambers’ application and ordered that Mr Chambers be reinstated.93 Mr Newton appealed the decision dismissing his application.

[132] In the first instance decision in Newton, 94 the Deputy President found that Mr Newton was not at work at the time he engaged in the fight and his involvement was not, of itself, of such gravity or importance as to indicate a rejection or repudiation of his contract of employment with Toll. It was also noted that there was no evidence that Toll’s reputation or interests were damaged including because of the awareness on the part of other employees, of the fight. Members of the public did not witness the fight and the employees concerned were not wearing any clothing that would associate them with Toll. The Deputy President also found that Mr Newton’s belief that he was bound by Toll’s policies and procedures during his free time, was not relevant.

[133] The Deputy President concluded that involvement of Mr Newton in the fight and a verbal altercation that he also engaged in, were not valid reasons for his dismissal, either individually or combined, because these incidents did not have a sufficient connection to his employment. However, the Deputy President went on to conclude that Mr Newton was dishonest both to Toll and in his evidence to the Commission and that this constituted a valid reason for his dismissal, weighing in favour of a finding that the dismissal was not harsh, unjust or unreasonable and that overall, the dismissal was not unfair. The Deputy President found in relation to this matter that:

“It follows from the foregoing that whilst an employee may engage in conduct or behaviour that does not occur at work, or does not have a requisite connection with work, if such matters are investigated by their employer, such an investigation will occur at work. It equally follows that any answers provided by an employee to questions put to him or her by their employer during such an investigation fall within the scope of the employment relationship. And in so falling within the scope of the employment relationship in this case, Mr Newton had a duty to answer questions and/or give his version of events honestly.”

[134] The Deputy President’s finding was based on his view that the duty to answer questions was an incident of the duty of fidelity owed to his employer and the requirement that an employee not act in a manner destructive of the necessary confidence between employer and employee, as set out in the judgements in Blyth Chemicals v Bushnell. 95

[135] Relevantly, one of the grounds in Mr Newton’s appeal against the decision, was that the Deputy President erred in concluding that Mr Newton was required to be honest and candid with Toll, in its investigation of a fight which was out of hours conduct, not connected with his employment. In its decision in the appeal, the Full Bench agreed with the Deputy President’s conclusion that the fight did not have a relevant connection with Mr Newton’s employment with Toll and that his involvement in the fight did not constitute a valid reason for his dismissal. However, in relation to the Deputy President’s conclusion that Mr Newton had a duty to answer questions about the fight posed by his employer at work, the Full Bench said:

[145] The concept of a duty of fidelity and good faith is used as a matter of convenience to subsume a range of obligations which are intended to ensure that the employee renders honest and faithful service to the employer. They include:

•  an obligation not to damage the employer's interests by disclosing or using confidential information obtained in the course of employment

•  an obligation to act honestly in handling the employer's property

•  an obligation not to earn any secret profits, and

•  an obligation not to engage in employment outside of the hours devoted to their main job where the spare time work is for a competitor of the main employer and may damage the employer's business.

[146] The obligations imposed by the common law duty of fidelity and good faith operate to prohibit acts outside of the employment which are inconsistent with the continuation of the employment relationship. But as Spender AJ observed in Cementaid (NSW) Pty Ltd v Chambers, ‘an actual repugnance between the employee's acts and his relationship with his employer must be found’.”

[136] After setting out and endorsing the principles (described by the Full Bench as the ratio) in Rose v Telstra the Full Bench in Newton said:

[151] In essence, the Deputy President reasons that investigations by employers about matters that do not occur at work and which do not have any requisite connection with work are investigations which ‘occur at work’. It is said to follow from this that: ‘any answers provided by an employee to questions put to him or her by their employer during an investigation fall within the scope of the employment relationship’. In short, because questions (presumably about anything) are asked ‘at work’ the employee has a duty to answer honestly. With respect, we disagree.

[152] Contrary to the proposition advanced by the Deputy President, an employee does not become obliged to answer questions from their employer about matters occurring outside work in their private lives merely because those questions are asked whilst the employee is at work. The mere fact that the employee is asked questions ‘at work’ is insufficient.

[137] After setting out cases relevant to the right to silence and the duty of an employee to give information to an employer 96 the Full Bench in Newton cited with approval the following observation of Finn J in McManus v Scott-Charlton:

“I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified.” 97

[138] The Full Bench also observed that it was necessary to consider the entire factual matrix in determining whether an employee’s lie or dishonesty is a valid reason for dismissal and noting that the fact that the question relates to conduct which lacks a requisite connection to employment is a relevant contextual matter, as is the fact that the employee is under no obligation to answer questions about such conduct. The Full Bench went to note its acceptance that in some circumstances a dishonest answer to a question about out of work conduct may provide a valid reason for dismissal – for example, if an employee damages their employer’s interests by dishonestly and intentionally impugning the character of another employee. The Full Bench in Newton also cited the decision of an earlier Full Bench in Streeter v Telstra Corporation Limited. 98 That case involved an employee who had attended a social function organised by her employer, and had sexual intercourse in a hotel room booked by co-workers to stay in after the event, within view and/or earshot of three other employees, and who when interviewed about the conduct by her employer, denied the conduct and then refused to answer questions.

[139] The Full Bench in Newton observed that the majority of a Full Bench in Streeter, considered that the Member at first instance had erred in concluding that the employee’s dishonesty could not ground a valid reason for dismissal and decided that there was a valid reason for the employee’s dismissal, due to her dishonesty in interviews with Telstra management. The Full Bench in Newton also observed that the majority decision in Streeter was predicated on the earlier finding that there was a sufficient connection between the out of work conduct and employment, and that this was a finding in respect of which reasonable minds may differ. The Full Bench in Newton further observed that Ms Streeter would not have been bound to be honest in her interview with the employer in circumstances where the conduct did not have a requisite connection to employment, because (for example) other employees did not observe it.

Principles in relation to out of hours conduct as a valid reason for dismissal

[140] The principles in relation to when out of work conduct may constitute a valid reason for dismissal, which can be distilled from Rose v Telstra and Newton and the cases considered in those decisions, are as follows. As stated in Rose v Telstra and endorsed by the Full Bench in Newton:

“…in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

•  the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

•  the conduct damages the employer's interests; or

•  the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.”

[141] There is no indication in Rose v Telstra that the out of hours conduct said to constitute a valid reason for dismissal must be conduct that is a repudiation of the employment contract. Rather, it is sufficient that the conduct is indicative of repudiation or rejection of an employee’s contract of employment. It is axiomatic that for conduct to indicate a rejection or repudiation of the employment contract, the out of hours conduct must be sufficiently connected to the employee’s employment. Not every connection between out of hours conduct and employment, will constitute a valid reason for dismissal.

[142] To constitute a valid reason for dismissal, the conduct must touch the employment. 99 As E I Sykes and H J Glasbeek (quoted in Hussein), posed the test – the out of hours conduct must touch the duties or the abilities of the employee in relation to the duties.100 Creighton and Stewart in Labour Law 5^th Edition also refer to conduct in the employee’s private life which may constitute a breach of duty. What is clear is that to determine whether conduct engaged in privately, out of hours or outside work has a relevant connection with employment to constitute a valid reason for dismissal, it is necessary to consider the entire factual matrix. This will include matters such as: the nature of the out of hours conduct and what it involved; where the out of hours conduct occurred; the circumstances in which the out of hours conduct occurred; the nature of the employment; the role and duties of the employee concerned; the principal purpose of the employee’s employment; the nature of the employer’s business; express and implied terms of the contract of employment; the effect of the conduct on the employer’s business; and the effect of the conduct on other employees of the employer.

[143] The cases establish that out of hours conduct may be relevantly connected to employment so that it is a valid reason for dismissal because the conduct occurs in a facility (such as a crib room) or accommodation provided by the employer or by a third party under an arrangement with the employer. 101 However, more may be required to establish the relevant connection than the geographical location at which the conduct occurs. Thus cases where an employee engages in conduct out of working hours, in a mess or camp style accommodation where rules of occupation are promulgated to all employees may be distinguishable from purely private conduct engaged in by an employee travelling on the employer’s business where that conduct is not observed by other employees.

[144] The requisite connection between out of hours conduct and employment may be because the results of the conduct directly impact the employee’s ability to perform work, in a practical sense. For example, as a result of criminal conduct engaged in out of working hours the employee may be unable to perform the duties he or she was employed to perform because the employee is imprisoned for an extensive period, so that the contract of employment is frustrated. Similarly, a connection may be established where a sanction imposed on the employee because of out of hours conduct prevents the employee from carrying out duties which are the principal purpose for which he or she was employed – for example, an employee employed as a chauffeur who loses his or her drivers’ licence and is legally unable to drive a motor vehicle and who cannot reasonably be employed on alternative duties.

[145] The connection between the out of hours conduct and the employment may be because the role the employee is employed to perform, has inherent requirements, duties or obligations, with which the out of hours conduct is directly inconsistent. This may be because the employee holds a special position such as police officer, university academic, solicitor or public servant, and engages in conduct out of work which is directly inconsistent with the inherent requirements of his or her position. In such cases, the expectations that the employer may reasonably have about perceptions of the employee on the part of persons external to the employer, such as customers or members of the community, may be sufficient to establish the connection.

[146] There may be a connection between the employment of a person convicted of a crime outside work where that person is employed in a role which requires them to perform the same duties, or duties in the same context, in which the crime was committed. An example of such a connection is found in Hussein. There, an employee of a bank, who engaged in credit card fraud on another bank, outside work, was validly dismissed for such conduct. The relevant connection was that the employee was required to assist persons whose first language was not English with a range of financial transactions, including, on occasions, handling cash. The employee held a position of responsibility and trust, and the employer was therefore entitled to expect that he was trustworthy and that his honesty in the carrying out of his duties. could be relied on. That the employee engaged in criminal conduct involving fraud against a bank, was sufficient connection to justify dismissal on the basis that the employer no longer trusted the employee and could not rely on his honesty, in respect of his dealings with its customers and/or the bank.

[147] However, if the employee had been employed in an administrative role in which he was not dealing with customers of the bank, or a role which did not involve financial transactions, the requisite connection may not have been found. While employers generally expect their employees to be trustworthy, this expectation, is not of itself, sufficient to establish a relevant connection with employment so that conduct outside work, where an employee’s honesty and integrity is brought into question, is a valid reason for dismissal. The critical distinction between cases where a relevant connection is established is that something beyond mere expectation is required. The connection must relate to an inherent requirement of the employee’s position or an attribute which the employee must have in order to undertake the required duties of his or her position.

[148] A relevant connection between conduct outside working hours and employment may also be found where the employee concerned engages in conduct out of hours which materially damages the employer’s interests in respect of its relationships with its clients and staff. In Wakim v Bluestar Global Logistics, the relevant relationship between the out of hours conduct and employment was found where an employee who was convicted of a child sexual offence was a public figure whose conduct attracted widespread media attention and was also the primary point of contact for current and potential clients of the employer and a senior manager and regarded as a leader in the business. Accordingly, the out of work conduct was found to be a valid reason for dismissal.

[149] There are also cases where the relevant connection between out of hours conduct and employment is found based on the effect of the conduct on other employees or the efficient operation of the business. Thus, in McManus v Scott-Charlton, conduct engaged in by an employee which involved the harassment of a co-worker outside working hours, was a valid reason for dismissal because of the effect on the victim of the harassment at work. Similarly, a deliberate assault on a foreman outside work, was found to be grounds for dismissal because it would likely impact on the relationship between managers and those they were supervising. 102

[150] The line that can be traced through the cases is that all the circumstances of the employment must be examined and that the express or implied terms of a contract of employment are relevant, but not determinative, to the connection between out of hours conduct and employment, where the conduct is relied on as a reason for dismissal. Absent a connection with employment of the requisite kind, out of hours conduct will not constitute a valid reason for dismissal. We turn now to consider the appeal grounds.

Appeal grounds

Ground 1

[151] In relation to ground 1, it is apparent that the Deputy President erred in finding that the Appellant did not have a valid reason to dismiss the Respondent. The error was two-fold. First, the Deputy President did not properly apply the test when considering whether there was a relevant connection between the Respondent’s criminal conduct out of work and his employment, in accordance with the principles in Rose v Telstra endorsed by a Full Bench of the Commission in Newton. This was an error of principle, of the kind identified in House v The King. Secondly, the Deputy President did not consider the entire factual matrix disclosed by the evidence, for the purposes of determining whether there was a valid reason for the Respondent’s dismissal. In this regard, the Deputy President’s analysis of the evidence involved significant errors of fact which satisfy the test in s.400(2) of the Act.

[152] We commence by considering the uncontested evidence before the Deputy President. The evidence established that at around 8:20am on 16 August 2020, the Respondent was stopped by Police while driving a vehicle, when he had a blood alcohol concentration of over four times the legal limit. The Respondent conceded under cross-examination at the hearing before the Deputy President that when he drove a vehicle on that date and in those circumstances, he exhibited a significant lack of judgement, was not thinking clearly and knew that his conduct was reckless. The Respondent agreed that he knew that by driving while intoxicated, he could injure himself or someone else. The Respondent also agreed that he knew that when driving a train, he should not have alcohol in his system because it could affect his ability to drive safely and that he was required to be self-aware in relation to his ability to drive a train safely, because he is not supervised while driving and can be rostered to drive a train with less than 24 hours’ notice. Further, the Respondent agreed that Train Drivers are required to self-report if they feel they cannot drive safely, and that the Appellant needed to have trust and confidence that the Respondent would comply with this requirement.

[153] Notwithstanding the Respondent’s concessions, it was not in dispute that the Respondent attended work to commence his rostered shift, at 5.15 am on 17 August 2020 – less than 24 hours after he had been charged with a high range drink driving offence. By reason of being charged with that offence, the Respondent knew, or should have known, that less than 24 hours earlier – at 8.20 am on 16 August 2020 – his blood alcohol concentration was over four times the legal limit. The Respondent drove a train on 17 August 2021, presumably at, or close to, the commencing time of his shift. The Respondent did not take any steps to determine whether there was residual alcohol in his system and simply relied on his own judgement. The Respondent did this in circumstances where he knew that on two previous occasions his judgement in relation to having alcohol in his system had failed and the fact that he had attended for work with alcohol in his system, was only discovered because he had been randomly tested.

[154] Under cross-examination, the Respondent conceded that he did not recall what time he had stopped drinking or whether he had slept, before reporting to work on 17 August and driving a train. The Respondent also conceded that he did not know how many drinks he had consumed before being pulled over by the Police on the morning of 16 August, and that it must have been a large number for the Respondent to be four times over the legal limit.  103

[155] In relation to the two previous incidents where the Respondent had alcohol in his system at work, the Respondent accepted in cross examination that both events had occurred early in the morning, he erroneously believed that he could drive a train and was not above the proscribed limit for alcohol despite drinking the previous day, and that his conduct in this regard raised a safety concern for him and the Appellant. In short, the evidence establishes that despite being twice sanctioned for his significant lack of judgement in reporting for work after he had been drinking the day before, the Respondent engaged in the same conduct on 17 August 2020.

[156] In our view, the Deputy President’s analysis failed to engage with this evidence and was unduly focused on peripheral matters such as the fact that the Respondent’s conduct occurred outside working hours on a day when the Respondent was not rostered to work, and that the Respondent did not need a driver’s licence to perform the duties of a train driver. While these matters were relevant to the entire factual matrix, they were not determinative.

[157] In this regard, the Deputy President also focused his attention on the proposition that there was no evidence that the Respondent had alcohol in his system when he attended work on 17 August. With respect, the Full Bench is of the view that this was not the point in the circumstances of this case as disclosed by the evidence. Rather, the Respondent did not know whether he still had alcohol in his system and chose to attend work regardless and not to self-report immediately, despite knowing that he had been charged with a high range drink-driving offence less than 24 hours previously. Contrary to the Respondent’s submissions, it is also not to the point that the Appellant does not have facilities for employees to self-test if they are concerned about whether they are fit to drive a train. The Respondent was required to self-report any concern about his fitness and if he did not wish to do so, the Respondent could simply have stayed away from work. We also note that the Respondent conceded in cross-examination that there is an “Are you ok policy” and that he was required to self-report if he felt that he could not drive a train and that the Appellant is required to have trust and confidence that he will self-report if he considers he is unable to drive a train safely. Further, the Respondent accepted that when he is working early in the morning, he needs to have an understanding about whether he has alcohol in his system. 104

[158] In light of the evidence about the Respondent’s conduct on 16 August 2020, the Respondent should have held real concerns about his fitness to work on 17 August and understood that it was the same conduct for which he had previously been sanctioned and was inconsistent with the inherent requirements of his job as a Train Driver, that he be fit to safely drive a train. The Deputy President did not consider these matters and his failure to do so, is a significant error of fact that satisfies the test in s.400(2) of the Act.

[159] This is relevant to the next matter we consider – the inherent requirements of the Respondent’s position as a Train Driver and whether his criminal conduct was relevantly connected to that position. The Respondent was employed as a Category 1 Safety Critical Worker under the National Standard for Health Assessment for Rail Safety Workers and the Appellant as a rail safety operator was required to ensure that he was not impaired by alcohol or drugs when undertaking his work. As such, the Respondent was employed in a special position with duties and obligations to the effect that he was able exercise good judgment, including by ensuring that he did not have alcohol in his system and that he was able to assess his own ability to drive a train safely.

[160] In essence, the Deputy President considered the Respondent’s conduct based on example posited by Staindl JR in Hussein, that a conviction on a drink-driving charges would not be relevant to the employment of many people but would be of critical relevance to a truck or taxi driver. The Deputy President should have considered the Respondent’s conduct on the broader basis also discussed in Hussein having regard to the inherent requirements of his role as a train driver and the attributes an employee in that role is required to demonstrate. These matters were relevant to consideration of whether the Respondent’s criminal conduct had a relevant connection to the Respondent’s employment.

[161] Instead, the Deputy President focused on matters that were at best, peripheral to this question, by observing that a driver’s licence is not an inherent requirement of the Respondent’s role as a Train Driver and that unlike the taxi driver referred to in Hussein, the Respondent does not require a valid driver’s licence to perform the duties of a Train Driver. For the reasons we have set out above, this constituted a failure by the Deputy President to apply the proper test in accordance with the principles in Rose v Telstra and significant error of fact in relation to the way the Deputy President dealt with the evidence that was before him about the imperatives associated with safety, the Respondent’s critical role in ensuring that he did not jeopardise his own safety or that of co-workers, passengers and the rail network and the interests of his employer.

[162] These errors are repeated in the Deputy President’s consideration of the risk to the Appellant’s interests that was posed by the Respondent’s conduct. After setting out a passage from Wakim v Bluestar Global Logistics in relation to out of hours conduct by an employee being connected to employment by its effect on the employer’s reputation, the Deputy President failed to consider the risk to safety posed by the Respondent’s inability, on three occasions, to properly self-assess and know when he can and cannot drive, because of being affected by alcohol. That safety risk was material and not hypothetical as found by the Deputy President. When the passage of transcript referred to by the Deputy President as the basis for his finding that the Appellant conceded that the risk was hypothetical is considered, it is apparent that no such concession was made. The reference is to a submission by Counsel for the Appellant in relation to future risks of a Train Driver being found to be operating a train while under the influence of alcohol. In circumstances where the Respondent had twice reported for work with alcohol in his system and on a third occasion reported for work less than 24 hours after being found to have a blood alcohol content of over four times the legal limit, there was nothing hypothetical about the risk that the Respondent could fail to self-assess and drive a train when it was not safe for him to do so. The implications of this risk are heightened by the Appellant’s statutory safety obligations.

[163] For these reasons, appeal grounds 1 and 4(a) are upheld.

Ground 2

[164] Grounds 1 and 2 overlap to the extent that in ground 2 it is asserted that in addition to the Deputy President’s erroneous finding in relation to whether there was a valid reason for the Respondent’s dismissal, the Deputy President should have found, on the basis of the evidence, that the Respondent’s dismissal was not harsh, unjust or unreasonable. There was also overlap in the Appellant’s submissions in relation to grounds 1 and 2. The Appellant reiterated in ground 2, the Deputy President’s findings in relation to the Respondent’s conduct on 16 August 2020 and on the previous occasions he had tested positive for alcohol in random tests before he started work, and his previous attempts at rehabilitation. The Appellant contended that considering these findings the Deputy President erred by concluding that the Respondent’s lack of judgment was unlikely to be repeated and that his dismissal was inexplicable and/or that the Deputy President failed to give any proper consideration to the fact that the Respondent’s criminal conduct occurred despite previous rehabilitation attempts.

[165] We agree that the finding that the Respondent’s dismissal was harsh, unjust and unreasonable was contrary to the evidence upon which it was based and that this constitutes significant error of fact to which s.400(2) applies. As we have noted above, the Respondent had on two previous occasions, reported for work and upon being subject to a random test, returned a positive result for alcohol. On both occasions the Respondent had conducted a self-assessment and concluded that he was able to drive. The evidence before the Deputy President included concessions by the Respondent that on both occasions, he was found to have alcohol in his system at work and stated to persons investigating the incidents that he had been drinking the previous day. The evidence also establishes that the Respondent told investigators on the first occasion that he could not remember the time at which he stopped drinking and on the second occasion that he stopped drinking at 7:00pm on the night before he attended for work, and on that occasion, was found to have a positive reading for alcohol when first tested, before returning a zero result in a later test. The Respondent also accepted under cross-examination that on both occasions he had tested positive for alcohol before commencing work, he believed that he was fit for work. 105

[166] These matters were also highlighted in the Appellant’s written and oral submissions at first instance. We also note that the transcript of the Respondent’s evidence under cross-examination in the proceedings before the Deputy President indicates he attempted to explain the second incident by asserting that a colleague had used a liberal amount of hand sanitiser in the area where the Respondent was working. While the Deputy President was in a better position to observe the Respondent while giving his evidence, and to make assessments as to credit, the Respondent’s evidence on this point appears incongruous, particularly given it was not raised in the Respondent’s evidence in chief. We also note that this failure was taken up with the Respondent in cross-examination in the hearing at first instance. 106

[167] In light of the weight of this evidence, the failure of the Deputy President to conclude that the conduct on 16 August 2020 was the same conduct as the Respondent had engaged in on two previous occasions, was a significant error of fact. We are also of the view that the Deputy President was in error with respect to his consideration of the evidence relating to the
Respondent’s efforts at rehabilitation. That evidence clearly established that the Respondent had participated in rehabilitation in 2009 because this was required of him by the Appellant. The evidence also established that in 2011, the Respondent had been required to attend a medical session prior to recommencing duties as a train driver and had told the doctor that he intended to remain abstinent from alcohol in the long term. Further, the Respondent accepted that he had engaged in rehabilitation and counselling after his criminal charges and that he was compelled to do this given the circumstances of his criminal offence. 107 The Appellant also submitted at first instance, and in the appeal, the most recent rehabilitation efforts had been engaged in for a period of only three months and the evidence of this was the same evidence the Respondent provided to the Magistrate who dealt with his criminal charges.

[168] While the Deputy President set out extracts from Ms Bunting’s evidence and the Appellant’s submissions, he did not assess this material in reaching his findings at [84] that the evidence did not support a conclusion that the Respondent’s lack of judgment was likely to be repeated and that he had undertaken “significant rehabilitation”. Those findings were against the weight of the evidence. As a result, the Deputy President’s finding that the Appellant’s decision to dismiss the Respondent was “inexplicable” also constitutes a significant error of fact that satisfies the test in s.400(2).

[169] Finally, in relation to ground 3 of the appeal, we accept that the Deputy President did not have sufficient regard to the Respondent’s admissions in cross-examination, that the Appellant must have trust and confidence that the Respondent would not have alcohol in his system when he attends for work as a Train Driver and that it could not have that confidence given his past behaviour. We also note that the Respondent accepted in cross-examination that his statement to the Commission at first instance, that he had always followed the policies of the Appellant, was not accurate. 108 For reasons we articulate in relation to appeal ground 1, the finding that there was no valid reason for the Respondent’s dismissal was erroneous because it was based on a misapplication of the principles in relation to the connection between out of hours conduct and employment and significant errors of fact.

[170] The Full Bench agrees with the Appellant’s submission that the errors in relation to valid reason, also contributed to failure on the part of the Deputy President to consider the material admissions by the Respondent relevant to appeal ground 2, and the Appellant’s submissions in relation to them. Instead, the Deputy President placed decisive weight on the Respondent’s short rehabilitation following his criminal charges without reference to the previous misconduct and attempts at rehabilitation, in reaching his conclusion that the Respondent’s dismissal was harsh, unjust and unreasonable. This constitutes a significant error of fact that meets the test in s.400(2) of the Act.

[171] We therefore uphold appeal ground 2.

Ground 3 and 4(b)

[172] Grounds 3 and 4(b) of the appeal centre on the Deputy President’s conclusion that the Respondent’s dismissal was harsh. We consider that these appeal grounds should also be upheld on the basis that the conclusion is founded on errors of fact in relation to the evidence. The conclusion in relation to harshness, is based on findings that the Respondent’s age and relatively significant length of service and difficulty that the Deputy President accepted the Respondent would have gaining employment because he required a driver’s licence to work for the only other employer of Train Drivers – the rail freight industry.

[173] As the Appellant correctly points out in its submissions in the appeal, the Respondent was under 50 at the time the application was heard. Further, the Deputy President does not refer to the Respondent’s evidence under cross-examination that he is a qualified electrical fitter (albeit his certificate is over 20 years old) and that he has an advanced certificate in electrical engineering. 109 Further, as Counsel for the Appellant’s noted in her submissions to the Deputy President at first instance, the Respondent put on no evidence about his financial circumstances or any difficulty obtaining other employment or in relation to difficulties in the rail network of obtaining employment without a driver’s licence. While it is true that the Commission can accept assertions made from the bar table by a party in proceedings, which are not challenged by the other party, in the present case, the Respondent’s submissions were challenged and the lack of evidence was highlighted. Contrary to the Respondent’s assertion in the appeal, the Appellant was not obligated to call evidence to rebut a proposition that was not established by evidence from the Respondent. Accordingly, the Deputy President should not have accepted those submissions, or at very least, should have provided a further opportunity for evidence about this to be led and responded to. As a result, there was insufficient evidence to support the findings of harshness.

[174] This is a significant error of fact that meets the test in s.400(2) of the Act. We therefore uphold grounds 3 and 4(b) of the appeal.

Ground 5

[175] Ground 5 of the appeal is that reinstatement was not appropriate. The Full Bench agrees with this submission. It is axiomatic that to grant a remedy for unfair dismissal, the Deputy President was required to first conclude that the dismissal was unfair, because it was harsh, unjust or unreasonable. It is well established that a dismissal may be:

•  harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

•  unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or

•  unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer.

[176] The Deputy President concluded at [78] that the Respondent’s dismissal was “harsh, unjust and unreasonable”. The Deputy President went on to find that the dismissal related to conduct that could only be considered out of work conduct which could never constitute a valid reason for termination and that the dismissal was harsh in its effects upon the Respondent. We assume that the conclusion that the dismissal was unjust and unreasonable was based on the finding that there was not a valid reason for the Respondent’s dismissal. For the reasons we have set out above in relation to appeal grounds 1, 4(b) and 3, the Deputy President’s finding in relation to valid reason was attended by error. For reasons we have also set out above, the Deputy President’s finding that the dismissal was harsh, was also erroneous. Accordingly, the Deputy President’s overall finding of unfairness was based on the incorrect application of the principles in Rose v Telstra, in relation to the relevant connection between out of hours conduct and employment, and significant errors of fact which affected his findings in relation to valid reason.

[177] The Full Bench is also of the view that even if not having a driver’s licence would impact the Respondent’s ability to obtain employment in the rail freight industry, this matter would not outweigh the valid reason for his dismissal so as to render the dismissal unfair.

[178] Accordingly, there was no basis for granting the Respondent a remedy for unfair dismissal. It is also apparent that apart from setting out the Appellant’s submissions in relation to reinstatement, the Deputy President did not fully consider those submissions or the evidence that was before him, in reaching his conclusion in relation to remedy.

[179] Therefore, we uphold appeal ground 5. Given our conclusions in relation to the appeal grounds, it is not necessary that we consider appeal ground 6 as most of the points encompassed in ground 6 have been dealt with in our consideration of the other grounds of appeal.

Conclusion and disposition of the appeal

[180] For the reasons given, we grant permission to appeal, uphold the appeal and quash the decision. Given our conclusions in relation to the grounds of appeal it is not necessary to remit the application for rehearing. We also do not consider that it is appropriate to receive further evidence in relation to harshness on the basis that even if the Deputy President’s conclusions in this regard were correct, this would not result in a finding that the dismissal was unfair as harshness would not outweigh other relevant considerations in relation to the validity of the reason for dismissal and the fact that the Respondent was afforded procedural fairness. We are also of the view that the Respondent should not be permitted to lead further evidence in relation to harshness in the appeal in circumstances where no evidence in relation to this matter was led in the proceedings at first instance and where the Respondent conducted its case in the appeal on the basis that there was no error in the decision at first instance.

[181] The Orders of the Commission are:

1. Permission to appeal is granted.

2. The Appeal is upheld.

3. The Decision in [2021] FWC 3792 is quashed.

4. On a redetermination of the Respondent’s application in U2021/1757 pursuant to s.394 of the Act, the application is dismissed.

VICE PRESIDENT

Appearances:

Ms E Raper SC and Ms C Bembrick of Counsel for the Appellant.

Mr P Boncardo of Counsel for the Respondent.

Hearing details:

2021.

Telephone Hearing.

30 September.

Printed by authority of the Commonwealth Government Printer

<PR739258>

 1   [2021] FWC 3792.

 2   PR732014, 23 July 2021.

 3   [2016] FWC 6992.

 4   (1995) 59 IR 103.

 5   Print Q9292, [1998] AIRC 1592.

 6   Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at

[17] per Gleeson CJ, Gaudron and Hayne JJ

 7   Fair Work Act 2009 (Cth) s.400(2).

 8   [2012] FWAFB 3540.

 9   Ibid at [25].

 10   Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [43]

 11   O’Sullivan v Farrer and Another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ;

applied in Hogan v Hinch (2011) 243 CLR 506 per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [69]; Coal

& Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [44]-[46]

 12   (2010) 197 IR 266 at [27]

 13   Wan v Australian Industrial Relations Commission and Another (2001) 116 FCR 481 at [30]

 14   (2000) 203 CLR 194.

 15   Ibid at [19] per Gleeson CJ, Gaudron J and Hayne J.

 16   Ibid at [21].

 17   House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ

 18   Ibid

 19   Wan v AIRC (2001) 116 FCR 481 at [30].

 20   [2021] FWC 3792 at [78].

 21   [2021] FWC 3792 at [57] and [65].

 22   [2021] FWC 3792 at [39].

 23   [2021] FWC 3792 at [8] and [85].

 24   [2021] FWC 3792 at [39] and [69].

 25   [2021] FWC 3792 at [8] and [15].

 26   [2021] FWC 3792 at [20].

 27   [2021] FWC 3792 at [19] and [45].

 28   See, [2021] FWC 3792 at [78].

 29   [2021] FWC 3792 at [63].

 30   [2021] FWC 3792 at [68].

 31   [2021] FWC 3792 at [68]-[69].

 32   See, [2021] FWC 3792 at [66].

 33   [2021] FWC 3792 at [46] and [57].

 34   [2021] FWC 3792 at [57].

 35   [2021] FWC 3792 at [59].

 36   [2021] FWC 3792 at [78] and [82] to [84].

 37   Knowles v BlueScope Steel Pty Ltd (2021) 388 ALR 94 at [46]; and Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [43].

 38   (1995) 59 IR 103 at 107.

 39   [2021] FWC 3792 at [57]-[59].

 40   Farquharson v Qantas Airways Ltd (2006) 155 IR 22 at [22].

 41   [2021] FWC 3792 at [18], [58] and [60].

 42   [2021] FWC 3792 at [26] to [28], [78] and [84].

 43   [2021] FWC 3792 at [84].

 44   [2021] FWC 3792 at [31] to [35], and [37].

 45   [2021] FWC 3792 at [84].

 46   [2021] FWC 3792 at [75].

 47   Respondent’s Outline of Submissions 28 May 2021 (at first instance); Transcript of proceedings 9 June 2021 at PN997.

 48   [2021] FWC 3792 at [75] and [78]. See also, Fair Work Act 2009 (Cth) s 400(2); Knowles v BlueScope Steel Pty Ltd (2021) 388 ALR 94 at [46]; and Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [43].

 49   Edwards v Giudice (1999) 169 ALR 89 at [10], [44] – [48].

 50   Barach v UNSW [2010] FWCFB 3307 at [16].

 51   TechnologyOne Limited v Roohizadegan [2021] FCAFC 137 at [108]-[113], and the authorities cited therein; McLoughlin v Randstad Pty Ltd [2021] FCAFC 160 at [25]-[31]; Barach at [16]; Soliman v University of Technology, Sydney [2012] FCAFC 146 at [41]-[46].

 52   TechnologyOne at [108]-[113]; McLoughlin [2021] FCAFC 160 at [25]-[31].

 53   TechnologyOne at [108]-[113].

 54   The expression of ‘motor vehicle’ is defined in s 4 of the RT Act to be a vehicle built to be propelled by a motor that forms part of a vehicle. Plainly, a ‘motor vehicle’ does not include a train.

 55   (unreported, AIRC, Print Q9292, 4 December 1998). The principles in Rose v Telstra were recently endorsed by the Full Bench in Newton v Toll Transport Pty Ltd [2021] FWCFB 3457 at [149]-[150]. See also Sydney Trains v Cahill [2021] FWCFB 1137.

 56   Tasmanian Ports Corporation v Gee [2017] FWCFB 1714 at [42].

 57   Nilsen (SA) Ltd v CEPU [2016] FWCFB 3119 at [13]; Coulton v Holcombe (1986) 162 CLR 1 at 7.

 58   Sydney Trains v Hilder [2020] FWCFB 1373 at [26](7), [28] and [31].

 59   Cf. Newton v Toll Transport Pty Ltd [2021] FWCFB 3457 at [152]

 60   Wakim v Bluestar Global Logistics [2016] FWC 6992 at [32] – [35] per Hatcher VP; Chambers v Toll Transport Pty Ltd [2020] 5819 at [76](a).

 61   (1995) 55 IR 103.

 62   [2016] FWC 6992.

 63   Lovell v Lovell (1950) 81 CLR 513 at 533 per Kitto J; Hatwell v Esso Australia Pty Ltd [2019] FWCFB 2895 at [27].

 64   Transcript of proceedings PN812.

 65   Hatwell v Esso Australia Pty Ltd [2019] FWCFB 2895 at [23].

 66   (2003) 197 ALR 389 at [24]-[25].

 67   Day v SAS Trustee Corporation [2021] NSWCA 71 at [37].

 68   [2021] FWC 3792 at [78].

 69   Print Q9292, [1998] AIRC 1592

 70   [2021] FWCFB 3457.

 71   (1938) 60 CLR 681.

 72   Ibid at 689 per Rich J; 691 – 692 per Dixon J and 698 per McTiernan J.

 73   Ibid at 688 – 689.

 74   (1991) 4 VIR 310 at 324. Cited with approval by Staindl JR in Hussein v Westpac Banking Corporation (1995) 59 IR 103.

 75   [1986] ICR 802.

 76   (1995) 59 IR 103.

 77   Ibid at 107.

 78   Ibid at 107.

 79   (1933) 49 CLR 66.

 80   Ibid at 82.

 81   Ibid at 74.

 82   NSW Supreme Court, unreported, 29 March 1995.

 83   Ibid at 6.

 84   (1996) 140 ALR 625

 85   1969) WAR 13.

 86   (1982) 1 IR 252 at 256.

 87   Henry v Ryan [1963] Tas SR 90; (1983) 5 IR 185 at 187; Pense v Henry [1973] WAR 40 at 42; Public Service Board v Morris (1985) 156 CLR 397 at 404 per Gibbs J and at 408-409 per Wilson and Dawson JJ; 1985) 156 CLR 397 at 412; Orr v The University of Tasmania (1957) 100 CLR 526; In re Wearne [1893] 2 QB 439; R v Teachers Appeal Board; Ex parte Bilney (1983-1984) 6 IR 476; Re F (1979) 5 QL 236; Bercove v Hermes (1983) 74 FLR 315.

 88   47 [1974] AR 596. Cited in Perez and Naumovski v Extruded Metals Pty Ltd, unreported, 30 March 1995 per Fleming JR.

 89   (1995) 62 IR 385.

 90   49 (1978) AILR 19.

 91   (1971) 139 CAR 707.

 92   [2021] FWCFB 3457.

 93   Chambers v Toll Transport Pty Ltd (2020) 300 IR 348; (2020) FWC 5819.

 94   [2020] FWC 5690.

 95  (1933) 49 CLR 66.

 96   Associated Dominion Assurance Society Pty. Ltd. v Andrew & Anor (Associated Dominion) (1949) 49 S.R. (N.S.W.) 351, at 357-358; Murray Irrigation Ltd v Balsdon (2006) 67 NSWLR 73; Patty v Commonwealth Bank of Australia (2002) 113 IR 1.

 97   (1996) 140 ALR 625 at 636.

 98   [2008] AIRCFB 15.

 99   McCallum, Pittard and Smith Labour Law: Cases and Materials (2nd Edition) 1990 p. 140 cited in Hussein v Westpac Banking Corporation.

 100   E I Sykes and H J Glasbeek Labour Law in Australia 1972 p. 71.

 101   AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385; North Australian Workers’ Union v Newcastle Protective Coating Pty Ltd (1971) 139 CAR 707.

 102   Re Transfield Pty Ltd [1974] AR (NSW) 596.

 103   Transcript PN236 – 244.

 104   Transcript PN227 – 232.

 105   Transcript of proceedings PN303 – 305; PN316; PN318 – 319; PN323; PN348 – 353; PN358.

 106   Transcript of proceedings PN341.

 107   Transcript of proceedings PN282 – 285.

 108   Transcript of proceedings PN406 – 408.

 109   Transcript of proceedings PN414 – 418.