Drunk and Vomiting After Work Client Function Did Not Justify a Valid Reason for Termination

The Full Court of the Fair Work Commission (“FWC”) on 17 June 2019 ordered the reinstatement of an employee confirming that the employee had been unfairly terminated.

The original allegation at the trial of the matter against the employee was that she had, at a client function:

• insulted a co‑employee and the client’s employee;
• made propositions of a sexual nature to the client’s employee;
• vomited on the forecourt area of the Sydney Opera House (the venue of the client function) and that she was escorted by event members to a taxi because of her intoxication.

The only allegation which was proven was that she had vomited at the function and had to be escorted from the event.

The Full Bench of the FWC confirmed the decision that:

• there was no valid reason for the termination;
• they agreed with the original decision that found that the employee’s conduct did not pose a serious risk to the employer’s reputation and viability.

The FWC took into account that 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 20 July 2017, still allowed the employee to work on restrictions until the date of dismissal on 2 August 2017 which was not consistent with there being a serious risk to the reputation or viability of their business.

Reinstatement was appropriate acknowledging that there were difficulties that may exist in the relationship between the employer and her supervisor but those difficulties could be satisfactorily reconciled. The FWC found that the employment relationship here, like in most cases, is “capable of withstanding some friction and doubt”.

Lessons for an employer

1. Conduct a fair and proper investigation.
2. Only rely on reasons for dismissal which you believe you are capable of establishing.
3. Be extremely cautious of dismissing an employee without notice. The test as to whether or not summary dismissal is appropriate comes down to the question “whether the employee’s conduct has been so inconsistent with his duties under the employment contract that it strikes down any reasonable suggestion that the employer/employee relationship can be continued in the future.
4. Have appropriate policies and procedures implemented which deal with expected behaviour at work and client functions where the employee is representing the employer.

If you require any assistance in developing policies and procedures or training your staff, please contact our workplace relations team.