An employee becomes inebriated at an after-work function attended by clients.

Will this type of misconduct be enough to warrant a termination of employment?

In general terms, what sort of matters should an employer consider in terms of process and their ultimate decision?

These issues were considered recently by the Fair Work Commission in the matter of Puszka.

The Facts

The worker was employed as a Project Administrator by a contractor at the Sydney Opera House (SOH).

Evidence was given that the worker had a commendable work history and that there were no performance or conduct issues prior to the events which occurred on the evening of Friday, 20 July 2018.

On that evening the worker had attended farewell drinks for a colleague, which occurred after work hours and at which attendees purchased their own drinks. The function occurred at public bars on the SOH site.

Ultimately, it was alleged that the worker had become intoxicated and was sick on the floor of the bar area. Following that the worker was assisted from the bar into a taxi. The worker denied allegations that during this period, she made insulting and disparaging statements about employees of the SOH and the employer, and that she propositioned an SOH employee.

As the worker was the only employee of the employer at the function at the relevant time in question, the employer only found out about the incident several days later, and the matter was investigated. The worker subsequently received a letter titled “Re: Misconduct” (the Letter) which referred to the fact that the employer had been made aware of the incident at the function which was said to have involved the worker’s “misconduct” (referring to the allegations outlined above), and was invited to attend a meeting to discuss the matters referred to in the letter on the next day. The worker was also invited to bring “… a witness or other representative” to the meeting.

While the worker initially invited two SOH employees to attend the meeting with her, the employer’s representative suggested that the employee reconsider this, as there was some concern about the involvement of employees of the employer’s client. The employee ultimately attended the meeting without a support person.

At the meeting, the employee was invited to respond to the matters raised in the Letter. The employee read from a prepared statement and admitted that while she had been intoxicated, sick, and was escorted from the building, that she denied propositioning an SOH staff member, or making insulting or disparaging statements about others. While the worker apologised for her intoxication and being sick, she also sought further details about the matters raised in the Letter. The worker was subsequently told that a further meeting would be arranged.

Following the meeting, the employer spoke to two SOH managers who provided anonymous written reports about the worker’s conduct on the evening in question.

The worker was subsequently invited to a further meeting, attended by the worker and two managers of the employer. At the meeting, the worker was asked if she wanted to put anything further to the employer in relation to the events on the evening in question. In response, the worker indicated that she wanted to know the identity of the relevant complainants against her, as she had witnesses who supported her version of events.

This request was rejected by the employer, and the worker’s employment was summarily terminated. The employee was provided with a pre-prepared termination letter which also indicated that ” … no time in lieu will be paid“.

The Findings

Commissioner Cambridge found that the evidence of one of the worker’s witnesses, who claimed that she did not witness or overhear the worker make any derogatory remarks at the function in question, was to be preferred to that of the employer (such as the statements of the two anonymous witnesses). In relation to the more serious finding of misconduct, that the worker had propositioned an SOH employee, the Commissioner noted that the worker had said to an employee of SOH, “Don’t let anyone take advantage of me“. He also noted evidence that the SOH employee in question claimed that he was not propositioned at all, and that if he had been, he likely would not have been offended, noting that the worker was intoxicated.

The Commissioner went on to find:

“… although (the relevant employer’s manager) knew that (the relevant SOH employee) had stated that he had not been propositioned by (the worker), the employer confirmed and relied upon this false allegation as the gravest aspect of the serious misconduct for which the (worker) was summarily dismissed“.

Consequently, it was found that the extent of the worker’s misconduct was confined to her intoxication and being sick at the function.

While the Commissioner accepted that the worker’s behaviour might have some impact upon the renewal of the employer’s contract with the SOH, he did not accept that a single act of inoffensive intoxication, as in this instance, represented a “… sound, defensible and well-rounded” reason for dismissal. He went on to find:

Frankly, if one act of inoffensive drunkenness at an after-work function provided valid reason for a dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs“.

It was also noted that the worker was not suspended from work when the employee became aware of the allegations, up until the termination occurred, which would have been the usual course. This meant, according to the Commissioner, that the employer could not dismiss summarily rather than on notice. The employer was also criticised for not allowing the worker to have a support person of her choice present, despite the fact that the worker nominated employees of the SOH.

It was therefore found that the worker was unfairly dismissed. Orders were made to have the worker reinstated as well as for lost pay.

Conclusion

This case demonstrates yet again that not only do employers need to be extremely carefully when they are contemplating summarily terminating the employment of an employee, but also as to the processes they engage in to determine the action which is to be taken.

If there is a suggestion that an employee has engaged in serious misconduct which could lead to a summary termination of employment and where an investigation or similar is required, the employee should be suspended, and in most cases on full pay.

In this case, the Commission also found that the worker was not given sufficient details of the particular allegations of misconduct levelled against her in order to allow her to properly respond. The employer should have heard from the worker’s witness and the SOH employee who was alleged to have been subjected to the proposition, before it accepted the version of events provided by the anonymous managers. The provision of sufficient details of allegations to an employee in these situations is very important. The date and time that an incident occurred, and what it is alleged was said will often be crucial details that are required to be given to an employee on the pointy end of a claim of misconduct before any decisions are made.

Care also needs to be taken in the rejection of a person nominated by an employee to act as a support person in any meetings.

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

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