HANGOVERS ARE NOW AN EVEN BIGGER HEADACHE FOR EMPLOYERS
HBS: UNFAIR DISMISSAL UPDATE
The Fair Work Commission has recently determined a Tasmanian factory worker was unfairly dismissed after taking a hangover sickie.
In Chapman v Tassal Group Limited t/a Tassal Operations Pty Ltd  FWC 4630, Tasmanian salmon producer Tassal Group Limited (‘Tassal’) was ordered to pay compensation to an employee who overindulged on Anzac Day and was unable to attend for work.
Avril Chapman was employed as a processing employee with Tassal where she was responsible for scaling, slicing, weighing and packing fish.
After overindulging on Anzac Day (also the employee’s birthday) Ms Chapman telephoned her manager and left the following voicemail message:
‘Hi Michelle, its Avril one of your most loved pains in the a**se. 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.’
After receiving the voicemail message the Senior Manager of Tassal was concerned that the employee was using a “golden safety rule” to justify her behaviour of consuming so much alcohol that she anticipated she would be unable to work the following day.
Tassal viewed the employee’s actions as amounting to misconduct and when Ms Chapman returned to work on 27 April 2017 she was stood down and required to respond to the allegation that she had deliberately consumed alcohol to the point where she was unable to carry out her duties safely.
The employee provided two email responses to Tassal which included, in part, the following justification:
‘Firstly, I did not deliberately make the decision to consume alcohol to the point were (sic) I would be unfit to attend work the following day.
It was my BIRTHDAY, and friends dropped by unannounced. I had my official birthday party on the Monday night and wasn’t expecting visitors on Tuesday, however, visitors I got. As the afternoon went on I realised it was going to be a long night and I believe I acted responsibly and respectfully by contacting management to let them know I wouldn’t be fit for work.’
Tassal regarded both responses from the employee as a lack of acknowledgement or acceptance of any wrongdoing.
On 28 April 2017 Tassal wrote to Ms Chapman reiterating the initial allegation and indicating that their preliminary decision was her employment should be terminated.
In reaching this decision, Tassal relied on an earlier breach by the employee of its Code of Conduct in December 2016 where Ms Chapman received a warning after she telephoned the company and left the following voicemail message at 8.33pm:
‘Hello, it’s Avril, um ... I won’t be at work today. I am non compos mentis, which means I’m f***in’ s***faced. I just found out my brother’s got advanced lung cancer and I’m a bit upset about it all yeah. Sorry.’
After considering the employee’s responses to its decision, Tassal moved to termination citing the employee’s earlier warning, her lack of contrition, failure to comply with a reasonable instruction, lack of accountability and a breakdown in the employment relationship.
Deputy President Barclay found that whilst there was a valid reason for dismissal, the termination was harsh.
In reaching this conclusion, the Deputy President was critical of Ms Chapman and found that she had chosen to over indulge in alcohol the day before she was due to work, to such an extent that she was unable to fulfil her obligations, without any reasonable justification for doing so.
While Ms Chapman tried to argue that the reason for termination was not valid because her conduct was out of hours, this was not accepted by the Deputy President, and it was held that Ms Chapman’s after hours conduct was incompatible with her duties to her employer.
The Deputy President likened Ms Chapman’s conduct to an employee “taking a sicky” without being ill, because:
‘Here the applicant “took a sicky” in circumstances where she had voluntarily embarked upon a course of conduct that resulted in incapacity for work.
The situation is perhaps made worse by the applicant’s acknowledgement that she could have gone to bed early and been fit for work the next day.’
In those circumstances the Deputy President concluded that there was a valid reason for termination.
When examining the harshness of the decision his Honour concluded that the dismissal was disproportionate to Ms Chapman’s conduct.
The Deputy President also concluded that Tassal was not able to rely on the employee’s earlier conduct as the circumstances behind the employee’s first warning were very different - the applicant had just found out a close relative was gravely ill. Also, the subject of the first warning was the employee’s inappropriate language, in the present matter it was not the employee’s language which was in issue but her conduct of consuming alcohol to such an extent that she was unable to perform her duties.
While the Deputy President found that there was a valid reason for dismissal, in light of no prior warnings for similar conduct and the fact that the Ms Chapman had conducted herself appropriately for 5 years, the termination was deemed to be harsh. His Honour held that another sanction such as performance management or a final warning would have been more appropriate.
At the time the matter reached hearing it had been 18 weeks since the employee’s dismissal. Ms Chapman had also received a payment of 5 weeks in lieu of notice on termination. His Honour therefore concluded that the maximum Ms Chapman could recover would be 13 weeks pay (being the period without work minus the notice paid) or $10,972.00.
Given the conduct of Ms Chapman the Deputy President ordered that the maximum amount of compensation payable to the employee be discounted by 25%, ultimately awarding Ms Chapman the sum of $8,229.00 or 10 weeks pay.
LESSONS FOR EMPLOYERS
The silly season is quickly approaching and it brings with it some unique headaches for employers.
Employers are responsible, not just for employees during a company function but also before and after, particularly if alcohol is being consumed. The silly season also brings an assortment of opportunities for employees to overindulge.
The present matter highlights the need for employers to consider a range of disciplinary options when dealing with employees, particularly having regard to the employee’s length of service and previous employment record.
If you are contemplating disciplinary action against an employee or are simply unsure as to whether the actions of an employee constitute misconduct then we recommend that you seek legal advice.
Contact the team at HBS and save yourself a hangover headache!