3 drinking-related unfair dismissal cases HR needs to know

reference unfair dismissal
Karl Rozenbergs
Rosie Meyerowitz

By and

written on December 4, 2017

Alcohol and the workplace can cause a real hangover for employers, leading to claims about harassment, bullying, work health and safety breaches, and unfair dismissal. These three cases can help employers understand why they need to be prepared, and some things to watch out for.

 

Falling asleep on the job

Employers should have well-publicised, clear policies and a consistent culture when dealing with alcohol in the workplace. This was not the case in Cannon v Poultry Harvesting Pty Ltd in 2015, and the Fair Work Commission (FWC) found Poultry Harvesting did not have a valid reason for dismissing Cannon, who allegedly arrived to work intoxicated and fell asleep.

Cannon’s supervisor said it was well known among staff that there was a zero tolerance policy on alcohol in the workplace. But the policy tendered in evidence, which was unsigned by the employee, did not support this. Instead, it set out a “…‘managed’ time and counselling-based approach aimed at correcting aberrant behaviour”. The FWC found there was uncertainty about the standard of behaviour to which the employee was being held.

Christmas party rant

When organising workplace events involving alcohol, employers should ensure that alcohol is served responsibly, employees are supervised and they are clear on when the event ends.

Given the approaching festive season, Keenan v Leighton Boral Amey NSW Pty Ltd is a cautionary tale. At the work Christmas party, Keenan quickly became intoxicated and told a board member to “f*** off”, asked an employee “Who the f*** are you? What do you even do here?” and asked another employee personal questions before saying, “I want to ask for your number, but I don’t want to be rejected.”

When the party officially ended, Keenan moved from the hired room to the upstairs bar with other employees. There he repeatedly tried to touch an employee’s face, called another employee a “b****” and kissed another employee on her mouth before saying he would dream about her.

The FWC found that Keenan’s subsequent dismissal was harsh. Although the venue oversaw responsible service of alcohol, the employer did not take any steps to satisfy itself as to how the venue would go about this. Employees could freely help themselves to drinks, and Keenan was never refused a drink or asked to stop drinking, and the employer did not arrange for anyone with managerial authority to supervise conduct during the party.

It found Keenan’s conduct after the party did not constitute a valid reason for dismissal because it was not connected with his employment, and did not have adverse workplace effects.

Pre-emptive sickie

Employers should avoid disproportionate responses to issues arising from alcohol and the workplace – any disciplinary action must fit the conduct. In Avril Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd in 2017, Chapman was dismissed after leaving a voicemail saying she would not attend work the next day because she had too much to drink.

While Chapman’s dismissal was valid, because she breached her common law duty to be fit for work, the judgment held that it was harsh because Tassal misused a prior warning as a reason to proceed to termination rather than a less severe sanction. Chapman had been warned for similar conduct previously, but that warning was distinct because it involved her drinking after discovering a relative was gravely ill.

The judge considered that if Chapman notified Tassal of her incapacity in the morning when she was due to go to work, termination would have been unlikely. Chapman was awarded $8,229 in compensation.

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