Workplace Relations Review
Cases and Legislation November 2020
The Federal Circuit Court of Australia has rejected an employee’s claim that she was discriminated against because of her pregnancy and potential pregnancy.Read more...
“Drunkenness and vomiting at after work drinks did not justify employee's dismissal"
Ryan Wilks Pty Ltd v Puszka  FWCFB 3323
The Full Bench of the Fair Work Commission (FWC) has confirmed that an employee was unfairly dismissed for drinking excessively and vomiting at an after-work function.
The employee was a Project Administrator employed to work on site with one of her employer’s biggest clients, the Sydney Opera House (SOH).
In July 2018, the employee attended a farewell drinks function for a SOH employee at a public bar area of the SOH. Attendees purchased their own drinks.
At the function, the employee consumed a considerable amount of alcohol. She became drunk and vomited onto the floor of the bar area. She then had to be assisted out of the bar and into a taxi.
A manager employed by SOH advised the employer about the employee’s conduct at the function and the employer commenced an investigation.
The employee received an email from the employer’s NSW Contracts Manager stating that she had engaged in misconduct at the function and had be overheard insulting a colleague and SOH employees, had made propositions of a sexual nature to a SOH employee, had vomited on the forecourt and had to be escorted to a taxi.
The employee then attended two meetings with the Contracts Manager and other managers of the employer. At the second meeting, the employee was advised that by the Contracts Manager that he deemed her conduct at the function to be serious misconduct and her employment was terminated with immediate effect.
First instance decision
The matter was heard in the first instance by Commissioner Cambridge.
The Commissioner found that the employer had conducted an “incomplete and truncated” investigation and that the reasons for dismissing the employee involving her making insulting or disparaging remarks about her employer, colleagues or employees of SOH had no basis in fact. Nor did the allegation that the employee had sexually propositioned a SOH employee. Therefore, these could not be valid reasons for dismissal.
The only reasons that were based in fact were that the employee became drunk and vomited and an after-work hours farewell drinks. The Commissioner acknowledge that this would cause the employer concern and may warrant some disciplinary action, but continued:
However, on any reasonable and objective contemplation, a single act of drunkenness at an after work function which did not involve any abusive or aggressive behaviour, and for which no serious risk to the reputation or viability of the employer’s business could be established, would not represent misconduct that provided a sound, defensible and well-founded reason for dismissal. Frankly, if one act of inoffensive drunkenness at an after work function provided a valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs. (at paragraph )
The Commissioner found that there was no valid reason for the dismissal and it was therefore unfair. The Commissioner ordered that the employee be reinstated.
Appeal decision of the Full Bench
The employer appealed the initial decision to the Full Bench, primarily on the grounds that the Commissioner took an incorrect approach when considering whether there was a valid reason for dismissal, and incorrectly concluded that the employee’s conduct was inoffensive and did not pose a serious risk to the employer’s reputation or the viability of its business.
The Full Bench considered the arguments of both the employer and the employee and found that the conclusions reached by the Commissioner were open to him and there was no error in his decision.
The employer’s appeal was dismissed.
What can your business learn from this decision?
A single act of inoffensive drunkenness from an employee at an after-hours function is unlikely to be sufficient grounds to dismiss an employee.
It may, however, form grounds for other forms of disciplinary action such as a formal warning. Employers are entitled to protect their business interests but not all regrettable acts of drunkenness are termination offences.
“Employee fails in appeal after being dismissed for excessive drinking resulting in inability to attend for work"
[name withheld] v QF Cabin Crew Australia Pty Limited t/a QCCA  FWCFB 1322
The Full Bench of the Fair Work Commission (FWC) has confirmed that an employee’s excessive consumption of alcohol, which rendered him unable to work the next day, was a valid reason for his dismissal.
The employee was a flight attendant and was rostered to work a 7-day flight pattern of Brisbane - Los Angeles – New York – Los Angeles – Brisbane in July 2017.
The employee’s flight to New York arrived at about 5.15pm. He and another flight attendant went to a bar that evening and consumed alcohol and danced. At about 11.40pm the other flight attendant found the employee passed out on the floor of the bar’s toilets. The employee was conveyed by ambulance to hospital.
A toxicology report performed by the hospital 2.32am showed that the employee’s blood alcohol concentrations was 0.205%. Expert evidence given before the FWC demonstrated that this would have meant the employee consumed 14 standard drinks.
The employer was discharged from hospital and informed his manger that he was unwell and would not be able to attend work on the return flight to Los Angeles that day.
The employee later flew as a passenger to Los Angeles and returned to Brisbane thereafter.
Once he was back in Australia and was cleared to resume work, he was placed on suspension while the incident was investigated by his employer.
Allegations were put to the employee that he had consumed an excessive amount of alcohol which caused him to fail to attend work the next day in his safety critical role as a flight attendant.
In response, the employee contended that he had only consumed five drinks, which was not excessive, and that led him to believe that his drinks were spiked.
The employer found the allegations against the employee to be substantiated and he was dismissed with notice.
First instance decision
The matter in the first instance was heard by Deputy President Dean.
In short, the employee claimed that his dismissal was unfair because:
The employee also submitted that his dismissal was harsh having regard to his good record of service, his willingness to provide assurances about his future conduct and the serious personal and financial consequences of the dismissal.
The expert witnesses who gave evidence in the matter agreed that the employee consumed 14 standard drinks and there was no evidence to support a finding of drink spiking. The Deputy President found that the evidence supported a finding that the employee consumed an excessive amount of alcohol and it was because of this voluntary alcohol consumption that he was unable to attend for work the next day.
The Deputy President said,
It was [the employee’s] responsibility to ascertain the content and quantity of the drinks he consumed, [the employee] conducted himself in a manner which placed himself in a heavily intoxicated state. He consumed the alcohol voluntarily.
In the end, it is [the employee] who is responsible for putting himself in a situation where his consumption of alcohol caused him to fail in his duty to join his scheduled flight as a crew member on 23 July 2017.
The Deputy President ultimately found that the employee’s excessive consumption of alcohol, which was in breach of the employer’s policy and caused his failure to attend for work, constituted a valid reason for his dismissal.
The Deputy President considered the other matters relating to harshness raised by the employee but did not consider that any of those factors outweighed the seriousness of the employee’s conduct such that his dismissal would be unfair.
The Deputy President dismissed the employee’s application.
Appeal decision of the Full Bench
The employee appealed the Deputy President’s decision to the Full Bench of the FWC.
The employee’s appeal was primarily directed at challenging the finding that there was a valid reason for his dismissal. The employee claimed that the evidence showed that:
The employee also submitted that the Deputy President failed to deal with a central element of the employee’s claim being that he only intended to consume five drinks. The employee argued that the Deputy President erroneously conflated what the employee intentionally did (consume five drinks) with what he unintentionally did (consume 14 standard drinks) in circumstances there was no explicit finding concerning how the employee came to consume 14 standard drinks. The employee said he had provided an “innocent” and “unchallenged” explanation to the Deputy President.
The employer submitted that there was significant evidence contrary to the employee’s position, including the objective evidence of his blood alcohol level, the account of his colleague who was at the bar, the lack of evidence of drink spiking or “free pouring” and the medial evidence concerning his degree of intoxication.
The employer submitted that, on this basis, there was not a significant error of fact in the Deputy President’s decision and therefore, the conclusions that she reached were open to her.
The Full Bench found that employee’s evidence about the number of drinks he consumed was inherently implausible and unbelievable:
That the consumption of such a large amount of alcohol in so short a space of time caused [the employee] to black out is hardly surprising. The proposition that in those circumstances [the employee] could have a reliable recollection of what occurred and precisely how many drinks he consumed simply cannot be accepted. (at paragraph )
On the question of the employee’s intentions, the Full Bench found that while the employee may not have intended to become intoxicated to degree that he could not attend for work the next day, intention is not a necessary element of misconduct.
The Full Bench gave the example that some forms of misconduct are clearly intentional, like theft or fraud, whereas other forms of misconduct, like safety breaches, might be the result of recklessness, negligence or misjudgement.
The Full Bench considered that the employee’s misconduct was the result of recklessness and misjudgement on his part.
The Full Bench found that it was open the Deputy President to find that there was a valid reason for the employee’s dismissal.
Regarding the other factors relevant to harshness, the Full Bench held that the Deputy President did consider each of those matters. The Full Bench commented that simply because those matters were not given the weight the employee would have liked did not constitute an appealable error on the Deputy President’s part.
The Full Bench dismissed the employee’s appeal.
What can your business learn from this decision?
Employers are entitled to expect that their employees present for work when scheduled in a state that ensures they perform their work safely.
Where employees drink to excess and rendered themselves incapable of attending work, this will likely form a valid reason for dismissal. Particularly in safety critical roles and industries.
In this case, the Full Bench confirmed that the intention of an employee to commit misconduct is not relevant in determining whether that misconduct occurred – misconduct can be the result of recklessness, negligence or misjudgement.
Therefore, unintentional misconduct can still form the basis of a valid reason for dismissal.
"Psychological injury resulting from sexual harassment at Christmas party was work-related injury"
Youngblutt v Workers’ Compensation Regulator  QIRC 100
The Queensland Industrial Relations Commission (QIRC) has overturned a decision of the Queensland Workers’ Compensation Regulator in which a worker’s claim arising from sexual harassment at a Christmas party was denied.
The QIRC found that the worker’s claim should have been accepted as her injury was work-related and not the result of reasonable management action.
The worker was an employee of the Queensland Police Service stationed at Coolangatta Police Station.
In 2015, she attended the Coolangatta Police Station Christmas party held at a resort.
The party was organised by the station’s social club, of which the worker was a contributing member.
At the Christmas party the worker was sexually harassed by a colleague who told her on multiple occasions that he wanted to have sex with her. He also insisted on dancing with the her, despite her objections, and on one occasion, he put his arm around the worker and tried to kiss her. He also gestured towards her indicating that he was going to undo his pants.
A few days after the party, the worker made a complaint against her colleague alleging that she was sexually harassed.
Following the making of the complaint, an investigation was commenced by the Ethical Standards Unit and rosters for the station were adjusted to ensure that the worker and the alleged harasser did not work on the same shift.
After the complaint and the commencement of the investigation, a number of the worker’s other colleagues made comments to her such as, “you’re f**ked” and treated her differently. The officer in charge of the station also made comments to the worker that perhaps she “did not have the necessary qualities for the job.”
In January 2016, following the Christmas party and the subsequent events, the worker sought treatment from her GP and was diagnosed with work-related acute stress disorder. In March 2016, the worker made a workers compensation claim relating a psychological injury caused by the sexual harassment at the Christmas party and workplace bullying and isolation as a result of her complaint.
WorkCover Queensland refused the worker’s claim on the basis that:
The worker appealed the denial of her claim the to the Workers’ Compensation Regulator, which confirmed the denial.
The worker then appealed the Regulator’s decision to the QIRC.
The issues for determination by the QIRC were, in summary:
The QIRC examined the evidence of the worker, the medical evidence she provided and the evidence of the witness from the Queensland Police Service.
The QIRC found that, based on the medical evidence, the worker did suffer a psychological injury as a result of the sexual harassment at the party.
Once this was established, the QIRC was required to consider whether that injury arose out of or in in the course of the worker’s employment.
The QIRC gave considerable attention to the social club and the party to ascertain whether the worker’s attendance at the party held the necessary connection to her employment. The QIRC found that:
Given these findings, the QIRC held that the worker’s attendance at the Christmas party was “incidental” to her work and the injury she suffered as a result of her attendance arose out of, or in the course of, her employment.
The QIRC found that the major stressors which caused the worker’s injury, being the sexual harassment at the party and the subsequent treatment by her colleagues, were not management action and were therefore not capable of being captured by the reasonable management exemption in the legislation. The only stressor which could be described as management action was the statements made to the worker by the officer in charge of the station, and in any event, these statements were not reasonable management action and therefore also not capable of being capture by the exemption.
Ultimately, the QIRC found that WorkCover and the Regulator had mistakenly rejected the worker’s claim. She had suffered a psychological injury as a result of events at the Christmas party and her attendance at that party held the requisite connection to her employment to render her injury a work-related injury.
What can your business learn from this decision?
Work Christmas parties are work-related events even if the employees attending the party pay for it themselves. If an employer encourages employees to attend by making arrangements for them to do so or by endorsing the party in some way, it will be work-related event and any incidents that occur at the party will be work-related incidents.
For this reason, employers should ensure that Christmas parties and other work functions are safe environments for employees, free from harassment (just as the everyday workplace should be free from harassment) and other forms of inappropriate or unsafe conduct.
Should you require any further information or assistance, please contact our Director Shane Koelmeyer on (02) 9256 7500 or via email on firstname.lastname@example.org.
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