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Harsh response in dismissing employee who “overindulged” on their birthday

Submitted on Wednesday, 27th September 2017

In a case “not dissimilar to the situation of an employee 'taking a sickie' without being ill”, the Fair Work Commission found the circumstances of the dismissal were harsh.

The employee was engaged as a fish processer by a salmon producer for a period of 5 years. At approximately 5pm on Anzac Day the employee left the following voicemail: “Hi [employer], its [employee] one of your most loved pains in the a***. Um its ANZAC day, my birthday, and I admit I have over indulged so I’m taking into account one of the golden rules be fit for work and I’m not going to be fit for work so I won’t be there. But um love ya, catch ya on the flip side.”

Two days after ANZAC Day the employee returned to work and was handed a letter which contained an allegation of misconduct namely she had “deliberately made a decision to consume alcohol to the extent that [she] would not be fit for work”. The letter informed the employee she was required to respond to the allegation by noon the next day.  The letter stated the response would be considered by the employer when deciding what disciplinary action would be taken. The letter clearly informed the employee, the matter could result in her dismissal.

The employee emailed a response in which she denied she had decided to consume alcohol to the point where she was unfit. Instead the employee highlighted it was her birthday and, despite holding a party the night before, visitors had unexpectedly arrived which led the employee to realise “it was going to be a long night”. The employee maintained the events were “not planned and not expected”.  The employee also argued she felt she had “done the right thing in contacting management”.  A further email was sent by the employee the next day in which she stated she believed management had a “constant quest [to turn] ‘MOLEHILLS INTO MOUNTAINS’” and the “‘GO IN FOR THE KILL’ mentality [was] rather disturbing and completely against [the employers’] moral code”. The employee was adamant she had “done nothing untoward to deserve that letter”.

The employee had previously been warned regarding a similar incident in December 2016, when she left a voicemail stating, “I won’t be at work today. I am non compos mentis, which means I’m f***kin s***faced. I just found out my brother’s got advanced lung cancer and I’m a bit upset about it all yeah. Sorry.” The warning was for a breach of code of conduct due to use of inappropriate language.

Having considered the employee’s response and the previous warning, the employer resolved to terminate the employment relationship. A letter confirming this decision was sent to the employee in which the employer expressed it felt they had no alternative but to dismiss where an  employee “take[’s] no responsibility for [their] actions but rather look to place the blame on management”.

The Commission was satisfied there was a valid reason for dismissal however noted “the circumstances behind the first warning are very different.  The Applicant had found out that a close relative was gravely ill.  She had recourse to alcohol to an extent where she would not work.  She telephoned the employer and used inappropriate language.  I understand it was the inappropriate language which constitutes the breach of the [Code of Conduct].  That circumstance is different to this, where the evil in the phone message is not the fact it was left, nor the language but rather what it conveyed.  The breaches…..are different.  The first breach was for the content….not for taking the day off.

The Commission summarised “the case is not dissimilar to the situation of an employee “taking a sicky” without being ill….However because this is the first time the Applicant has conducted herself in that manner in 5 years of working…to terminate her employment was harsh….another sanction such as performance management or a further, perhaps even final warning was appropriate.”

The employee’s unfair dismissal claim successful.  The employee was awarded $8,229 as compensation, equivalent to approximately. 9.75 weeks’ pay, after a 25% reduction due to contributory conduct and misbehaviour.

This case demonstrates the variety of factors considered by the Commission when making a decision as to whether a dismissal is harsh, unjust or unreasonable. Attend our Managing Termination, Redundancy and Unfair Dismissals to increase your knowledge of the criteria the Commission consider when deciding if a dismissal is unfair. Our consultants will be able to share their knowledge of previous decisions issued by the Commission and provide advice as to how to decide when disciplinary action is appropriate as well as the strategies to adopt to ensure you are best positioned to defend an unfair dismissal claim.

Written by Phillipa Preston

Fair Work Commission Decision [2017] FWC 4630

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