Can You Be Fired for Driving Under the Influence Outside of Work Time?

A Full Bench of Fair Work Australia has confirmed that it was not harsh, unjust or unreasonable for J Boag and Son Brewing Pty Ltd (Boags) to terminate the employment of a process worker within Boags' packaging department because the worker had been charged with driving his vehicle with a blood alcohol limit of 0.154.

Boags had a responsible drinking policy. The worker claimed that the policy was unreasonable as it attempted to control his conduct outside of working hours in circumstances where no harm was caused to Boags. Boags claimed that the policy was adopted to safeguards Boags' interests in the promotion of social drinking and to protect Boags' reputation as a supporter of responsible drinking.

The Full Bench upheld the decision of Senior Deputy President Kaufman finding that Boags' termination of the worker was not in breach of the Fair Work Act 2009 (Cth). SDP Kaufman stated that not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breached that policy will have difficulty making out a claim that there is no valid reason for the termination.

Key lessons for employers

Employers should be aware that in some circumstances they may be able to terminate the employment of employees for their conduct outside of work. Generally, there must be a sufficient connection between the conduct and the employment relationship. Having a policy, like Boags in this instance, will help support the connection.

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