“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.”
– Commissioner Cambridge, FWC
The summary dismissal of an employee for drunken misconduct and alleged sexual propositioning has been deemed unfair by the Fair Work Commission (FWC) at a post-work farewell function, highlighting the need for employers to be extremely cautious about summarily dismissing employees.
A project manager employed by Ryan Wilks Pty Ltd (Ryan Wilks), an electrical company contracted by the Sydney Opera House, was summarily dismissed for breaching their internal code of conduct whilst intoxicated at a post-work farewell function held by the Sydney Opera House in July 2018. She was accused of becoming intoxicated and vomiting on the floor of a Sydney Opera House bar, making disparaging comments about other employees and sexually harassing a male colleague employed by the Sydney Opera House.
A Drunken Admission
The employee admitted to being intoxicated to the point that she vomited, and that she required assistance to leave the venue. She expressed remorse during the hearing. However, she rejected the other allegations that she made disparaging comments and sexual propositions.
On the night of the function the employee allegedly said to the male colleague “don’t let anyone take advantage of me” but the male colleague denied she was sexually propositioning him.
Commissioner Cambridge stated that despite the employer being aware the male colleague denied feeling sexually propositioned, “[a]stonishingly…it relied upon it as a reason for dismissal”.
The Commissioner also described the employer’s evidence that the employee made disparaging comments about another employee as “strangely inconsistent” and included “curious evidence” from “mysterious” anonymous witnesses.
In the End
The Commissioner accepted the employee’s evidence as more credible than the employer’s evidence, which the Commissioner deemed had “no basis in fact” and was simply an attempt by the employer to “elevate the severity of the applicant’s misconduct”.
Commissioner Cambridge accepted that the employee’s conduct could reflect negatively on her employer and stated, “[t]he employer was understandably concerned that the misconduct of the applicant at the farewell drinks function might have some impact upon the renewal of its contract with its major client, the SOH [Sydney Opera House]”.
However, the Commissioner criticised the employer’s investigation as being “incomplete and truncated” and held that the employee being intoxicated did not, alone, have the severity to justify a summary dismissal and that her termination was harsh, unjust and unreasonable.
Ryan Wilks was ordered to pay lost wages and to reinstate the employee. They are appealing the decision.
Lessons for Employers
Behaviour that at first glance may appear to be a valid reason for dismissal, still needs to be thoroughly investigated and considered before being acted upon. In the Commissioner’s own words:
“any employer should be very cautious about invoking a summary dismissal”.
If you require any assistance with unfair dismissal claims or what constitutes a breach of conduct warranting summary dismissal, please do not hesitate to contact Nick Stevens, Jane Murray or Angharad Owens-Strauss.
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