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UpdatesMar 22, 2019

Employee who got drunk out of hours was unfairly dismissed

“Any employer should be very cautious about invoking a summary dismissal.”

“Any employer should be very cautious about invoking a summary dismissal.”

This is a warning a Fair Work Commission (FWC) commissioner gave to employers when he found that an employee was unfairly dismissed after she became excessively drunk at an out-of-hours event.

The project administrator at Ryan Wilks Pty Ltd, an electrical contractor, was attending a farewell drinks function at the Sydney Opera House, her employer’s major client.

After consuming “a considerable number of alcoholic drinks” she vomited onto the floor of the bar area and needed assistance to leave the venue and make it into a taxi.

She was the only Ryan Wilks employee attending the event and the employer did not find out about the incident until five days later, when a Sydney Opera House contracts manager told the employee’s supervisor.

This was then relayed to Ryan Wilks’ NSW construction manager.

The employer commenced an investigation into the incident which it did not advise the employee about until a week later, when she was summarily dismissed.

To justify the summary dismissal, the employer also alleged that the employee had made insulting and disparaging remarks about other employees and made sexual advances towards a Sydney Opera House employee.

While the employee admitted that she was drunk, and apologised, she strongly rejected the other allegations which Fair Work Commissioner Ian Cambridge found had “no basis in fact”.

The employer’s investigation relied on questionable evidence

In the hearing, the employer provided “strangely inconsistent” evidence that included statements “provided anonymously by the mysterious Manager 1 and Manager 2”.

Commissioner Cambridge noted that the witness statement of the employee’s supervisor, which recollected the conversation he had with the Sydney Opera House contracts manager, contained many passages with identical wording to a redacted email attached to the construction manager’s statement.

Further, this email was dated six weeks after the construction manager said he had received it.

“Consequently, there appears to have been some attempt to reconstruct the detail of the conversation that was said to have occurred,” Commissioner Cambridge said.

According to the anonymous statement of Manager 1, the dismissed employee told the Sydney Opera House employee “you can take advantage of me if you like”, while the anonymous statement of Manager 2 claimed she said “that’s okay … you can take advantage of me”.

However, a document produced under subpoena revealed that this didn’t happen.

An email sent to a Sydney Opera House Manager (presumably not Manager 1 or Manager 2) six weeks after the event recorded the following:

“I have since spoken to [the Sydney Opera House employee] who has stated that he was not propositioned at all”.

“He said that even if she had propositioned him, particularly given she was drunk, he would likely not been offended. (I have relayed this to [Ryan Wilks’ NSW construction manager]),” the email stated.

In cross-examination, the construction manager confirmed that he knew that the Sydney Opera House employee did not feel as though he had been sexually propositioned.

“Consequently, although [the construction manager] knew that [the Sydney Opera House employee] had stated that he had not been propositioned by [the project administrator], the employer confirmed and relied upon this false allegation as the gravest aspect of the serious misconduct for which [she] was summarily dismissed”, Commissioner Cambridge said.

“Astonishingly, in respect to the allegation regarding any sexual propositioning of [the Sydney Opera House employee], the employer knew that allegation to be false and yet it relied upon it as reason for dismissal”.

The employee simply had too much to drink

“In the absence of any factual basis for the reasons for dismissal that related to [the employee] making disparaging remarks and/or sexually propositioning a [Sydney Opera House] employee, the extent of


misconduct was confined to her drunkenness and associated vomiting at the after work hours farewell drinks function. At no time did [the employee] deny or endeavour to downplay her drunkenness at the farewell drinks function,” Commissioner Cambridge said.

“[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 valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs.

“In this instance, the misconduct of [the employee] which involved her drunkenness during the … farewell drinks function did not possess any characteristic of wilful attack against the employment relationship.”

Sloppy investigations won’t cut it

Commissioner Cambridge said that “The employer attempted to elevate the severity of [the employee’s] misconduct by erroneously finding that her drunkenness also involved her denigrating others and sexually propositioning a work colleague”.

“The artificiality of the additional findings of misconduct made by the employer was revealed by evidence that the employer knew that the person who was alleged to have been sexually propositioned denied that such conduct had occurred.

“Upon careful evaluation, the misconduct of [the employee] cannot be construed to be of the nature and severity of serious and wilful misconduct that could provide valid reason for dismissal with notice, let alone summary dismissal.

“The employer conducted an incomplete and truncated investigation into the allegations of misconduct … and it erroneously concluded that [the employee] had engaged in all aspects of the alleged misconduct.

The Commissioner said that Ryan Wilks had “invoked a summary dismissal in circumstances where the employee was permitted to continue to perform work without restriction after the employer became aware of the nature and severity of the allegations of misconduct upon which it subsequently decided to dismiss”.

“In these circumstances, the employer was deprived of the capacity to dismiss without notice,” he said.

He held that the dismissal was “harsh, unreasonable and unjust” and ordered that the employee be reinstated.


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