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UpdatesJul 03, 2019

Employer forced to rehire boozy employee

An electrical company has lost its appeal of a Fair Work Commission (FWC) decision in March where it was ordered to rehire a woman who got drunk and vomited at a client’s drinks function.

An electrical company has lost its appeal of a Fair Work Commission (FWC) decision in March where it was ordered to rehire a woman who got drunk and vomited at a client’s drinks function.

Ryan Wilks Pty Ltd submitted that Fair Work Commissioner Ian Cambridge’s original finding that the employee had only committed a “single act of inoffensive drunkenness” which did not pose a “serious risk to the reputation and viability of [the employer’s] business” was wrong.

The employer contended that the employee’s conduct had the potential to damage its standing with its client the Sydney Opera House and that her conduct should have been deemed offensive, as she made the decision to drink to a point where she became intoxicated and vomited, creating a situation where staff had to clean her vomit and where she had to be carried out of the venue and driven by security to a taxi rank.

The employer submitted that Commissioner Cambridge was wrong to order reinstatement, as this not only posed a further risk to the business, but also because the employment relationship and confidence of the employer in the employee had been damaged.

Ryan Wilks further argued that “the errors identified in the grounds of appeal are significant and productive of an unjust result” which was a matter of public interest as “manifestly unjust decisions undermine public confidence in the administration of justice”.

However, the FWC full bench, Vice President Joseph Catanzariti, Senior Deputy President Jonathan Hamberger and Commissioner Michelle Bissett, disagreed with the employer.

“Having been made aware of the nature and severity of the allegations of misconduct surrounding [the employee’s] conduct at the function on 25 July 2018, [the employer] allowed [the employee] to work unrestricted until the date of summary dismissal on 2 August 2018,” they said.

“Having found that [the employee’s] misconduct at the function was ‘confined to her drunkenness and associated vomiting’, the Commissioner concluded that ‘no serious risk to the reputation or viability or the employer’s business could be established’.

“The Commissioner’s consideration of whether reinstatement was appropriate, and his ultimate order for such a remedy, reflects the findings made that were open to him on the evidence.”

The full bench upheld Commissioner Cambridge’s finding that there had not been “a genuine loss of trust and confidence such that the employment relationship should not be re-established” concluding he had “not been persuaded that the difficulties that may exist in the relationship between [the employee] and [the employer] could not be satisfactorily reconciled”.

“We are of the view that the employment relationship here, like in most cases, is ‘capable of withstanding some friction and doubts’,” the full bench said.

The appeal was dismissed.

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