Sobering effects of terminating for breach of alcohol policies

The Fair Work Commission has upheld an employee’s application for unfair dismissal following a positive blood alcohol test at work.

The employee, a maintenance worker, underwent a pre-work blood alcohol test.  His blood alcohol content first showed at 0.013%, and 0.006% some 30 minutes later.  The employee was stood down for the day, and his employment was terminated summarily 4 days later for breach of the company’s zero-tolerance Drug and Alcohol Policy.

Whilst the employee argued that his blood alcohol readings were low and still within legal limits to drive a B-double truck, Commissioner Bissett considered this as a rather dismissive attitude towards workplace health and safety on the part of the employee. The Commissioner also acknowledged that the incident was a clear breach of the Company’s zero-tolerance policy which required employees to present to work with 0.000% blood alcohol.

However, the employer relied upon other grounds to terminate, namely an earlier first and final warning for a safety breach, which the Commissioner found to have been inappropriate.  Also in issue was the fact that the employee did not appear to have been given an opportunity to respond to all of the matters being considered in respect of the decision to terminate, including the prior warning. Accordingly, where the first and final warning was found to have been harsh in the circumstances, and given the nature of the readings in question, the Commissioner found the dismissal to have been unfair.

The employee was not reinstated but was awarded compensation of $11,507.16.

The FWC has been increasingly willing to confirm the appropriateness of dismissals for breach of zero-tolerance work health and safety policies (see an earlier post on this topic at: Summary for breach of employer drug policy not unfair).

However, this decision suggests that, despite the existence of zero-tolerance drug and alcohol policies,  employers should still consider the appropriateness of dismissal for a “first offence”, particularly for otherwise lawful, low level breach.

Ingham v Metro Quarry Group Pty Ltd [2015] FWC 6472 (29 September 2015)

Excessive personal calls – What an employer can do when an employee just won’t hang up

A recent unfair dismissal decision contains key lessons for employers when managing employee use (and abuse) of work-related devices.  In this case the employer terminated the Applicant’s employment for failure to comply with a direction to repay a debt of $15,000 – being personal phone charges incurred on a work phone.

The Facts

The employer issued the Applicant with a work mobile phone. In late 2014, the employer detected that the Applicant’s use of the mobile phone was excessive and notified him that this was the case. The Applicant admitted that his excessive use was due to a number of personal international calls made to his family in India.  The Applicant apologised and offered to pay for the cost of the calls.  The total cost of the calls was $22,630 (incurred over a six month period from May to September 2014).  The Applicant repaid $7,500 towards the costs of the calls but refused to repay the remaining amount, claiming the amount was overly burdensome, and then claiming that he was not liable for the cost of the calls. 

The employer issued the Applicant with a warning letter in relation to his conduct, in which the employer:

  1. claimed the Applicant’s excessive personal calls on his work mobile phone breached its IT Equipment Policy and their Acceptable Use Guidelines (the Policies); and
  2. issued the Applicant with a direction to repay the outstanding monies owing. 

In response, the Applicant maintained his refusal to repay the outstanding phone bill and denied knowingly breaching the Policies.  For several months, the employer issued repeated directions to the Applicant to repay the monies, all of which where ignored.

Eventually in June 2015, the employer issued a ‘show cause’ letter to the Applicant, proposing a repayment plan which would see the Applicant repay $200 per fortnight until the outstanding monies were repaid.  The Applicant again failed to comply with the direction to accept a repayment plan and, as a consequence, the employer terminated the Applicant’s employment.

The Decision

Deputy President Gooley found that the Applicant was aware of, and breached, the IT Equipment Policy but was unable to make similar findings in respect of the Acceptable Use Guidelines (which outlined acceptable use of work-related equipment).  DP Gooley found it “surprising” that employees, including the Applicant, were not directed to the Guidelines during induction, at the commencement of employment.  Notwithstanding, DP Gooley found that the Applicant did breach the IT Equipment Policy, and that the employer was entitled to issue him with a warning in relation to his conduct. 

Importantly, the Applicant’s refusal to comply with the employer’s direction to enter into a repayment plan was a valid reason for termination.  In considering validity, DP Gooley noted that “I do not consider that the mere existence of a debt provides an employer with a valid reason to terminate the employment of an employee.  If there is a legitimate basis for the debt to be disputed then requiring the employee to repay the disputed amount on pain of dismissal may be unfair … however I find in this case that there was no reasonable basis for the Applicant to dispute the debt.  As such it was unreasonable of him not to enter into an agreement to repay the monies.” [60 to 61]

Tips for Employers

This decisions highlights that employers should:

  1. Ensure employees are aware of, and acknowledge, policies and procedures regarding the appropriate use of work related equipment, in particular IT and telephone equipment;
  2. Implement processes which provide for monitoring of such equipment and highlight the consequences associated with breach of such policies;
  3. When managing an employee debt, be flexible and reasonable when negotiating options for repayment, having regard to the quantum of the debt, the employee’s personal financial position and their remuneration; and
  4. Consider a direction to an employee to enter into a repayment plan, when managing employee debts become protracted and difficult.

Applicant v NBN Co Limited T/A NBN [2015] FWC 7412; Deputy President Gooley, 29 October 2015

Can you blame the booze? The fuzzy line between work and play…

Aggressive and sexually inappropriate behaviour whilst under the influence of alcohol may be a harsh reason for dismissal if the employer supplied the alcohol.

A team leader who was dismissed after he used inappropriate language and harassed and bullied colleagues on the night of a work Christmas function successfully argued that his dismissal was unfair.

The art of polite conversation

The Christmas function took place in a hotel where the employees attending had unlimited access to alcohol.  The employee consumed 10 beers at the function. During the function he told a member of the board to “f*ck off” and asked a female colleague “Who the f*ck are you?“. The employee also tried to get the phone number of a female colleague.

After the function ended at 10:00 pm, a group of employees moved to a public bar where they purchased their own drinks. It was here that the employee touched the chin of a female colleague, said to another “I used to think you were a stuck up bitch“,  and kissed a third on the mouth without warning and told her “I’m going to go home and dream about you tonight“.  The employee’s charm offensive continued en route to another venue with colleagues, when he told a fourth female colleague that it was his mission that night to find out the colour of her undergarments.

Following a number of complaints and an investigation, the employee was dismissed.  He subsequently commenced an unfair dismissal claim.

Providing the means creates a problem for the end

The Commission found that aspects of the employee’s behaviour were a valid reason for termination. However, the way in which allegations had been put to the employee during the employer’s investigation were problematic. The  allegations were put only in general terms, and the Commission was of the view that the employee didn’t have an opportunity to respond.

The Commission also found that the employee’s behaviour was isolated, and had likely occurred due to his intoxication. On the latter point, the fact that the employer had supplied the means for intoxication was relevant. Vice President Hatcher noted it was “contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time to allow the unlimited service of free alcohol“. 

The Commission drew a distinction between the employee’s behaviour at the work function and his behaviour afterwards, and found that the employee’s behaviour after the function was not connected to his employment. This finding is somewhat at odds with other commentary regarding out-of-hours conduct, for example in relation to unlawful harassment under anti-discrimination laws. 

The Commission ultimately found that the employer had a valid reason to dismiss the employee.  However, in the circumstances, the termination was harsh and unjust.  The Commission considered that the appropriate response would have been to demote him, issue a final warning, require a written apology and ban him from future work functions where alcohol is served.

Lessons to be learned

The Employer’s undoing in this case was in part related to a lack of procedural fairness, because of a failure to put specific allegations to the employee for response.

This decision is also a reminder that employers need to be careful about managing employee behaviour at work-sponsored functions – going beyond simply reminding employees about workplace behaviour policies before turning on the beer taps. Employers should also be proactive in managing behaviour during, and at the close, of workplace events, for example by:

  • Placing a manager in charge of each work event where alcohol is served, where that manager undertakes to refrain from or limit drinking alcohol;
  • Monitoring employee intoxication levels and taking appropriate steps in response to intoxication of employees (e.g. cutting off access to alcohol or placing the employee in a taxi home); and
  • Clearly marking the end of a work function (e.g. by clearing the room, closing the tab and ensuring that employees pay for their own drinks at any further venue rather than the company credit card).

 

Stephen Keenan v Leighton Boral Amey NSW Pty Ltd. (2015) FWC 3156 (26 June 2015)

FWC grants interim orders to halt disciplinary process

The Fair Work Commission (FWC) has granted interim orders to halt a disciplinary process (in effect preventing any dismissal that may result) pending determination of related disputes.

The employer in this case, the Metropolitan Fire & Emergency Services Board (MFB) commenced a disciplinary process after discovering pornographic, racist and otherwise inappropriate emails.  The disciplinary process had been underway for some period of time, and the union of the employee concerned had lodged disputes with the FWC under an applicable enterprise agreement about the disciplinary process.

The employee’s union sought interim orders to stop the MFB from continuing its disciplinary process through to conclusion, where such conclusion could result in dismissal. The FWC made the order sought –  to the effect that, until the employee’s disputes under the enterprise agreement are determined, the MFB is not be able to take any further steps in current disciplinary proceedings against the employee in so far as such steps might involve the termination or proposed termination of his employment.

The case doesn’t create a general precedent for the FWC getting involved in an employer’s disciplinary process. It is quite a narrow case about seeking to reserve the status quo whilst a dispute process commenced under an enterprise agreement is in progress. However, this case is interesting in that it demonstrates how an employee might seek relief in a dispute about whether the employer is following a disciplinary or investigation policy set out in an enterprise agreement.

This case is about a prescriptive disciplinary process in a public-service context. However, it serves as a reminder about the potential for “process” disputes when constructing detailed and complex disciplinary processes. Where these processes are housed in enterprise agreements, failure to comply with a process may enliven separate dispute resolution process that – if unresolved – may give rise to applications as in this case to halt a process.

United Firefighters Union of Australia v Metropolitan Fire & Emergency Services Board [2015] FWC 3263