Unfair Dismissal: Case Studies from the FWC

Vince Scopelliti - Wednesday, January 29, 2020

Perhaps one of the most vexed issues employers face is how to terminate employees without exposing the organisation to the risk of a successful unfair dismissal action. 

In light of the 15 January updates to the Fair Work Commission (FWC) Unfair Dismissals Benchbook, these two unfair dismissal cases at the FWC demonstrate the importance of employers being on safe legal ground before dismissing an employee. This is particularly important in circumstances where successful actions could result in a significant compensatory payment, or the employer being forced to re-hire a terminated staff member.  

1. The sleeping ferry master

In the decision of Sclater v Transdev Harbour City Ferries Pty Ltd [2019] FWC 7968, it was found that a ferry master who fell asleep during his shift had been appropriately terminated and not unfairly dismissed. 

In this matter, Mr Sclater was discovered to be asleep on a bench in the wheelhouse during the course of his shift travelling from the Pyrmont Bay Wharf to McMahons Point Wharf in Sydney. Instead of Mr Sclater, the ship’s engineer Mr Drygajlo was manning the helm. 

It was subsequently discovered that Mr Sclater, who was on numerous different types of medication due to a (disclosed and medically cleared) heart condition, had been taking a cough medicine for approximately a week. 

Despite warnings regarding potential drowsiness, Mr Sclater claimed not to have noticed that part of the label and had suffered no ill effects. However, on the date of Mr Sclater’s transgression, he had forgotten to take his heart medication but remembered to take the cough syrup. As a result, Mr Sclater suddenly felt extremely drowsy and sat down to “close his eyes”. By his own estimation, he was only unconscious for about five minutes.

The employer, Transdev, argued that Mr Sclater had both breached the company’s Drug and Alcohol Policy and had given dishonest evidence about whether he had in fact been asleep, and for how long. Although the FWC did not find any dishonesty in Mr Sclater’s evidence regarding how long he had been asleep, it was concluded that he had breached the relevant policy. 

This was because Mr Sclater: 

  • Did not obtain proper advice from the pharmacist about contraindications with his existing medicine and the cough syrup.
  • Exceeded the prescribed dosage of the cough medicine.
  • Did not read the information about the potential side effects. 

Ultimately, the FWC determined that, given Mr Sclater’s role as ferry master, there was no option but for him to remain fully alert at all times when on duty. His failure to do so in the circumstances meant that he had been validly dismissed.

2. Beers before work

By contrast, in the matter of Morcos v Serco Australia Pty Ltd [2019] FWC 7675, Mr Morcos was reinstated to his employment after being found to have been unfairly dismissed. 

Employed at the Villawood Detention Centre, Mr Morcos was on a rostered day off and had consumed two beers when he received a telephone call and was asked to come in for a shift. He agreed, believing that his blood alcohol concentration would have returned to 0.00 before his shift commenced. However, following a random alcohol test at work, Mr Morcos recorded two readings of 0.037 and 0.032. He was sent home (notably by driving his car!). 

Mr Morcos worked one further shift but was then terminated for breaches of the Drug and Alcohol Policy. 
The FWC found in Mr Morcos’ favour, however, noting that:

  • A blood alcohol reading between 0 and 0.005 could (and at that workplace previously had) result in a written warning and not an immediate termination. 
  • Mr Morcos had consumed a reasonable amount of alcohol on a rostered day off, believing that he would not be required to work after consuming the beers.
  • Mr Morcos was allowed to work the next day for an entire shift and was not subjected to alcohol testing on that occasion. 

The FWC therefore concluded that the nature of Mr Morcos’ alleged misconduct was not sufficiently serious to warrant termination. It ordered the employer to reinstate Mr Morcos to his former role. 

Employers, are you facing an unfair dismissal allegation? WISE investigators are experts in this field. They have years of experience in undertaking even the most complex workplace investigations, and are able to ensure your investigation is fair and legally sound. If your organisation needs assistance with a workplace investigation, WISE provides full as well as supported investigation services.

Managing Misconduct over the Holidays

Vince Scopelliti - Wednesday, December 18, 2019

The festive season is fraught with concern for employers. With many staff on leave and those who remain letting their proverbial hair down (often with a beverage or three!) the holiday period can be a minefield.

We take a look at when employees are still considered to be "at work", define misconduct and provide some tips for dealing with poor behaviour in the workplace over the holidays. 

When are employees still 'at work'?

A workplace is where people perform their jobs, undertaking their contracted hours of work. However, a work function held outside the office and outside regular business hours, is considered to be an extension of the workplace.

A general rule of thumb is, that if an event is organised and paid for by an employer, it's officially sanctioned. Liability therefore remains with the employer for any misconduct that occurs. This is likely to be the case, regardless of how many pre-event warnings have been issued to staff, and how many times staff have been reminded of the applicable policies and codes of conduct.

It is also important to keep in mind that employers may bear third party liability, to family members who attend a staff Christmas party, functions held in public venues (where people other than staff could get injured) and in circumstances where a worker causes injury to another person, when leaving an event in a state of intoxication.

defining misconduct in the workplace

Misconduct over the holiday period generally refers to inappropriate behaviour such as discrimination, workplace harassment and bullying, or sexual harassment. This type of behaviour is often associated with the Christmas party, where people have consumed alcohol and have lowered inhibitions.

It is important for employers to remember that the definition of sexual harassment, for example, includes but is not limited to, conduct of a sexual nature which is offensive, humiliating or embarrassing to the person complaining of the behaviour. Crucially, it is irrelevant if the behaviour was intended to offend - it is the opinion of the "victim" and not the "perpetrator" which is relevant.

Other types of misconduct include staff pulling "sickies" due to hangovers, or poor behaviour such as sharing inappropriate stories or having general disagreements between co-workers boil over.  

why is there a prevalence of misconduct over the holidays?

As noted, there is often an increased incidence of misconduct in circumstances where staff are consuming (potentially excessive) amounts of alcohol and otherwise lowering inhibitions.

There is also a general misapprehension amongst employees to the effect that a Christmas party is not considered to be related to employment - which is not the case.

This is part of the reason why employers should also give serious consideration as to whether they wish to gift alcohol, either to their staff or to clients or business associates. While alcohol is a convenient and often appreciated gift, it can create an impression that an employer is not concerned about responsible service of alcohol.

mitigating the risk of misconduct

There are numerous ways that employers can mitigate the risk of misconduct during the holidays. 

Before a function, employers should take steps to remind staff (generally via an email) that it is to be treated as a workplace event, and therefore the usual policies and procedures remain in place. It is also timely to recirculate documents such as code of conduct, sexual harassment or bullying policies and procedures.

During the work function, employers should consider ensuring that at least one (if not more) senior personnel are in a position to remind staff who have over-consumed alcohol, that they should stop drinking and/or perhaps even leave the event.

Similarly, companies should ensure that there are sufficient taxi vouchers or other safe methods of transport home, for all employees who want them. This ensures that the business cannot be responsible for any employees who injure themselves and/or others on the way from the party.

If allegations of misconduct do arise from a Christmas function, employers must ensure that due process and fair procedures are implemented. This includes taking into account the fact that staff may be on leave or have applied to be on leave.

Although the investigative process should not be unnecessarily drawn out, staff who have pre-booked leave, should not be prejudiced by the fact that they are unavailable at that time of year. They should have the same opportunity to prepare a response to allegations as at any other time of year.

Managing staff and keeping in touch with staff over a quieter holiday period can be a challenge. If you need assistance reviewing and managing staff behaviour in your workplace, WISE Workplace provides expert external investigation services to meet your needs. 

Responding to Bad Behaviour at the Christmas Party

Vince Scopelliti - Wednesday, November 27, 2019

It's no secret that both the good and the bad can be on display at the annual work Christmas party. While smiles and good cheer can and should be the main features at an end-of-year bash, some unfortunate behaviour can also arise. 

Alcohol abuse, sexual harassment and aggressive behaviour are just some of the less savoury possibilities. But despite the instinct to punish personnel who wander astray, it is vital that employers respond to Christmas misbehaviour in a manner which is both reasonable and proportionate.

Alcohol abuse/intoxication

For many workers and business owners, the idea of a Christmas party with zero alcohol is a rather bleak one. Secret Santa, sausage rolls and a few cool beverages tend to be part of the workplace festive tradition. Yet the results of intoxication at the work Christmas party are the stuff of unfortunate legend. Raised voices, wild dancing, lewd comments, recriminations and unwanted advances are just some of the potential products of the wrong mix of drinks.

Moderation is everything when it comes to the supply of alcohol at the end-of-year event. Plenty of forewarning to staff about rules and refreshments will also help to keep proceedings on an even keel.

sexual harassment

The well-known reduction of inhibitions caused by alcohol consumption can lead to one of the more serious Christmas party side-effects: sexual harassment. The working year is over, the relief is palpable and perhaps a perceived flirtation is taken in an unacceptable direction. Behaviour that would certainly be shunned in the ordinary workplace can seem 'up for grabs' in the glittery glow of the Christmas party lights.

Alcohol can of course be part of the unacceptable sexual harassment situation: yet sometimes just the high spirits of the Christmas party itself can lead to an array of unacceptable approaches and behaviours.

Aggressive behaviour 

As with misconceived flirtation, the office Christmas party can bring out the worst forms of aggressive behaviour. Personal tensions can simmer during the year, with the relief of the office party creating an unleashing of built-up emotion. Add alcohol to the mix, and there is a strong possibility that arguments, fights and even assaults will emerge.

Case study - keeping things proportionate 

The case of Keenan v Leighton Boral NSW Pty Ltd [2015] FWC 3156 reflects the need to act swiftly in response to Christmas party problems - yet to do so in a fair and measured way.

In this case, the Fair Work Commission was faced with the troubling situation of an employee becoming intoxicated and proceeding to swear, abuse and provide unwanted advances through the night. He was dismissed. However, the worker's excellent work record, combined with the employer's dubious provision of free-flowing alcohol, saw Keenan's dismissal overturned by the FWC.

In particular, it was noted that any disciplinary action needed to be reasonable and proportionate to the condemned behaviour. The limitless alcohol situation certainly did little to assist the employer's case. And while the employee's drunken behaviour was a nightmare of ill-conceived comments, actions and insults, the FWC noted that his long and notable record of service required the employer to be reasonable in response.

It is certainly a cautionary tale to employers supplying alcohol at Christmas parties. If no limits are placed upon the type and volume of alcohol consumed by workers across time, then a large part of the fault in such cases will no doubt be seen to rest with employers.

managing the christmas party risks 

When it comes to organising the annual Christmas party, it pays for employers to plan the event well in advance. All employees should be aware of the order of proceedings, times and expectations at the party. Employers should plan food and alcohol extremely well, working out how the judicious service of alcohol will be managed through the night.

Providing security staff on the night can also be an excellent way to keep emotions and good cheer under some sort of control!

The Keenan case certainly demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action against an employee. In unfair dismissal claims, the Commission will not hesitate to find in favour of the applicant where the employer failed to apply proportionate disciplinary action. If you would like to ensure your investigation process is considered and enforceable, WISE provides full and supported investigation services, as well as investigation training for your staff. 

Police Involvement in Workplace Investigations

Vince Scopelliti - Wednesday, September 25, 2019

On occasion, police will become involved and/or need to be involved in the allegations from a workplace matter. In this situation, it's important for employers to know what their obligations are, and to be aware of some of the challenges that can arise. 

So, let's take a look at when police are or may need to be called in and what should happen once they are. 

WHAT matters require the police? 

Generally speaking, any allegation of a serious or potentially criminal nature necessitates the involvement of police. This includes allegations of physical assault, sexual assault, stalking, child abuse, significant fraud or theft. 

In the event that a complaint could have criminal implications, it is always a good idea to get the police involved as soon as possible. This helps ensure that any police investigation is not hampered by destroyed evidence, ongoing delays or similar interference. 

the employer's obligations

If police have become involved in a workplace matter, the police investigation takes precedence over the internal one. 

However, while the police investigation does take priority, an employer must still carry out an internal investigation. This is to afford the employee who is the subject of the investigation due process and procedural fairness. 

The internal investigation and a police investigation must both be treated entirely separately, but run in tandem. The internal investigation must be managed without impeding the police investigation. It is essential for the employer to communicate closely with police and provide assistance wherever required.

It is also important for an employer to remember that one of their paramount obligations is to provide a safe working environment for staff. This means that if there have been serious allegations such as physical or sexual abuse, the complainant and respondent must be separated in the workplace. Generally, staff against whom allegations have been made should be suspended on full pay, pending the outcome of the police investigation. 

the challenges involved 

It is likely that the police investigation will require the use of resources that would otherwise be engaged in conducting the internal investigation. For this reason, it can be difficult to actively investigate a workplace matter internally while the police are undertaking their own investigation. 

It can also be difficult for employers to balance the need to assist police with their legal obligations to their employees.

a case in point

This balancing act is demonstrated in the matter of Wong v Taitung Australia Pty Ltd [2016] FWC 7982. In this matter, Mr Wong, an employee who was accused of theft, named several other employees allegedly involved in a criminal enterprise. 

Police suggested that the employer not take disciplinary action in relation to the employees, in order to obtain and preserve the evidence against them. This meant that the employer permitted Mr Wong to continue working with no warnings, despite having sufficient evidence to conduct a summary dismissal.

The police were unable to obtain sufficient evidence to charge him, however he was ultimately terminated. However, the Fair Work Commission found that the summary dismissal of Mr Wong was unjust in the circumstances. 

The added factor of police involvement while undertaking internal workplace investigations presents unique challenges for employers. The balancing of police intervention into serious criminal allegations, with the strict employment principles and procedures, is both challenging and essential to ensure employers' actions are reasonable. WISE provides external investigation services as well as training in conducting investigations necessary to manage the workplace-police dynamic. 

How to Take Action when Employees and Alcohol Mix

Vince Scopelliti - Wednesday, March 27, 2019

Alcohol and workplaces never mix well. No matter the sort of work they do, employees should not be in the workplace when they are under the influence or still suffering the effects of alcohol consumption. This includes drinking at work or immediately before starting work, and those who are still impacted by a big night out. 

So what steps should an employer take when dealing with a worker who they suspect is intoxicated in the office?

approaching an intoxicated employee

Occupational health and safety legislation throughout Australia places an obligation on employers to protect not only the safety of the intoxicated employee, but that of all other employees as well. 

This means making sure that an intoxicated employee can't hurt themselves or anyone else. Accordingly, employers have an obligation to approach intoxicated employees and ask them to leave work immediately (without driving a vehicle, of course!). 

However, being intoxicated at work does not necessarily mean that employees can be terminated immediately. When determining whether a dismissal for intoxication in the workplace is 'valid' or can be upheld, courts will consider several factors. These include whether the company's drug and alcohol policy or any contractual arrangements in place with the employee are sufficiently clear to demonstrate that there is a 'zero tolerance' policy for alcohol in the workplace. 

Although employees should certainly be disciplined for being intoxicated at work, employers who are wishing to avoid claims for unfair dismissal should consider interim steps such as clearly worded warnings rather than summarily dismissing staff.

factors that may contribute to alcohol abuse

Of course, prevention is always better than cure. Employers should give some thought to factors that may encourage their staff to over-indulge in alcohol to the extent that they are intoxicated in the workplace. 

Key risk factors include:

  • Age, gender and socio-economics. According to the Alcohol.Think Again campaign, young men who work in lower skilled or manual occupations are statistically most likely to be involved in 'risky drinking'.
  • Isolation (geographical isolation or social isolation within work peer groups)
  • Bullying, harassment and other interpersonal difficulties
  • Poor supervision, or support in the workplace
  • Difficult working conditions
  • High levels of stress 

How alcohol use can impact the workplace

An intoxicated employee can pose a risk to the safety of themselves and others. This is magnified when the employee is in a customer-facing role, or they are required to do manual work involving precision or machinery. 

Regardless of the nature of the work however, job performance can suffer as a result of the poor concentration and low productivity that will likely result from intoxication.

Steps to address alcohol use in the workplace

In addition to mitigating workplace risk factors, employers should ensure that they have clear and detailed drug and alcohol policies which identify under what conditions an employee would be determined to be 'intoxicated'. Policies should also clearly spell out the consequences of breaching those conditions. 

Employers must ensure that any breaches of the policy are thoroughly and objectively investigated, and any required disciplinary action is taken swiftly. 

If you would like to know more about risk management and creating effective drug and alcohol policies, or you require assistance with investigating an incident involving an intoxicated employee, contact WISE today.

Work Christmas Parties: 3 Tips for a Fun Festive Function

Vince Scopelliti - Wednesday, November 14, 2018

It's the end of a long year. Employers and staff alike have worked hard and are looking forward to the opportunity to catch up, celebrate, network and relax.

The work Christmas party is often anticipated as an ideal way to farewell the working year, reward staff, and anticipate the year ahead. However, employers must understand that a successful - and incident-free - Christmas party is dependent upon good planning and a sound understanding of the unique risks of work-related events. 

We provide our three best tips for ensuring a fun, safe and low-risk festive event. 

1. uNDERSTAND YOUR UNIQUE OBLIGATIONS 

One unfortunate mistake that we see in December is employers putting on a 'knees up' for staff without fully understanding the obligations involved. Importantly, it is not only parties held in the workplace that require careful consideration of an employer's legal obligations to staff. Festive functions that are off-site, yet employer sanctioned generally attract the full suite of workplace legalities. Required attendance or strong encouragement to attend, combined with free catering and in-built networking opportunities can all indicate that the Christmas party is indeed a work-related event, wherever it might be held.

Workplace safety usually brings to mind ideas of trip hazards and work station alignment. However, when it comes to the work Christmas party, some hazards are very particular. An open bar is a definite no-no. While some staff might groan about the lack of generosity, the relationship between alcohol and poor Christmas party behaviour is well-documented. It is no laughing matter for those employers who are faced with issues of alleged harassment, staff abuse and injury to workers in the wake of a Christmas 'cracker'.

2. Prepare, Prepare and prepare!

Clear communication to all staff about the nature of the upcoming Christmas party is essential. Without seeming like a kill-joy, it is important to outline in writing the expected behaviour of staff, venue rules and general housekeeping such as the end time of both the bar tab and the function itself. A good idea is to build a basic run-sheet into the invitation. Indicate a start time, any speeches and awards, food presentation, bar hours and offerings and close of proceedings. Preparing staff mentally beforehand will discourage untoward behaviour. 

The importance of limiting alcohol and providing professional function staff at Christmas parties was made painfully clear in the recent case of Sione Vai v Aldi Stores. An inebriated worker became extremely agitated when refused service of alcohol by a responsible bar worker. 

As part of his inappropriate and drunken behaviour, the employee threw a full glass of beer towards a security officer, which sprayed co-workers before smashing into a lamp. He was later dismissed. In appealing this decision, the worker claimed that he lost his job as a direct result of this employer-sanctioned party. 

However, Commissioner David Gregory considered that the provision of professional security and bar staff - trained in Responsible Service of Alcohol (RSA) - as well as a limited supply of alcohol all indicated that the employer had acted with care and diligence. The dismissal was upheld. 

3. respond swiftly to christmas party incidents

As seen in the above case study, preparation and quick action at the time of the function is essential. The aftermath of the party is also a crucial time to consider any necessary responses to incidents that come to light, whether by rumour or direct report. Unfortunately, sexual harassment, verbal abuse, alcohol-related injuries and culturally inappropriate behaviour can all rear their ugly heads at the very function that is designed to foster fun, camaraderie, reflection and unity. Employers should swiftly respond to any Christmas party incidents, ensuring that matters are investigated in a fair, professional and transparent manner. 

decking the halls (safely!)

Equipped with a strong understanding of legal obligations, some sound preparation and prompt responses to any incidents, employers can create a Christmas party that is enjoyable, safe and memorable for all the right reasons. 

If you need assistance to prepare for your Christmas party, or dealing with any issues, which arise from the Christmas party, contact WISE for assistance

Issues with Intoxicated or Hungover Staff? What to do

Vince Scopelliti - Wednesday, May 23, 2018

Most adults like to indulge in the use of alcohol from time to time. Some even like to partake a little more frequently - which is generally not problematic, in the privacy of one's own home and social sphere.

But occasionally problems with alcohol or even drug consumption can creep into the workplace, with staff under the influence while at work or under performing because of the after-effects. 

Employers have an OHS duty of care to all employees so they need to ensure that alcohol in the workplace does not give rise to safety risks. Employees also have a duty of care to themselves. Let's take a look at how employers can manage alcohol and drug-related issues in the workplace.

underlying factors and potential consequences

Alcohol and drug-related problems can occur in any workplace, across different industries. They can arise due to any number of factors, including personal issues experienced by the employee, stress, ongoing addiction, or poor workplace culture, to name a few. 

The potential consequences of alcohol or drug consumption - whether recreational or prescription - include the risk of injuries sustained by other staff and customers, absenteeism, lost production or general lack of competence, and a reliance on rehabilitation or workers compensation. 

The cost of these problems to business varies, however 1 in 10 workers say they have experienced the negative effects of a co-worker's misuse of alcohol.   

identifying alcohol or drug-related risks

One of the best ways to avoid difficulties with drugs and alcohol in the workplace is to identify potential risks and develop workplace policies that address these. 

These are some of the factors to consider when determining the level of risk facing your business:

  • Are your workers engaged in a high-stress environment? 
  • Is the operation of heavy machinery, vehicles or other equipment a requirement of your business?
  • Are there legislative or safety requirements to ensure that anybody operating this equipment is free from the influence of substances? 
  • Do staff potentially have access to illegal or significant amounts of pharmaceutical drugs, whether for their own consumption or for resale?

implementing a workplace drug and alcohol policy

At a minimum, your workplace policies should spell out:

  • Whether your company has a zero-tolerance policy for any types of drug or alcohol consumption;
  • Whether staff are required to declare reliance on specific pharmaceutical medications;
  • If random drug or alcohol testing is undertaken in the workplace; 
  • What expectations are placed on drug and alcohol consumption at work-related functions;
  • What the potential consequences of intoxication in the workplace could be

It is important to note that Section 12 of the Fair Work Act defines "serious misconduct" to include an employee being intoxicated at work. It would therefore be reasonable to dismiss an employee under those circumstances. 

It is also worthwhile ensuring that HR and other executive employees have undergone training in identifying staff who are intoxicated in the workplace or have perhaps formed habits of dependence. 

how to approach a worker who is under the influence 

When staff members suspect that a colleague may be under the influence of drugs or alcohol, it is important to be extremely sensitive in approaching that person. The specific approach will, of necessity, be dictated by various factors, including:

  • The relevant industry;
  • The workplace culture and structure;
  • The employee's role and seniority; 
  • The personal circumstances of the employee;
  • Whether the occurrence is 'once off' of suggests a pattern of behaviour; 
  • The legal environment;
  • The duties and responsibilities of the employee.

An employee is likely to be more responsive if they are approached from the perspective of a safety concern rather than an accusation. This is particularly the case where the behaviour or intoxication may arise from physical injuries, acute distress or prescribed medication which the patient is reacting badly to. 

During the process of drafting a workplace policy relating to drug and alcohol consumption, management should consider appointing and training specific staff members whose role it is to approach employees who are suspected to be under the influence of substances. 

These staff members could include managers, counsellors, health and safety representatives or HR representatives. A chain of command should also be instituted so that staff who have been tasked with making initial contact have somebody else to turn to for assistance if their initial approach fails.

If an employer dismisses an employee for drug/alcohol abuse and ends up with a claim for unfair dismissal, then a good employer defence would include that they had a workplace policy and approach that not only included clear consequences but also emphasised that the employer views abuse as a health issue and therefore seeks to help the employee overcome their abuse (this would be in cases where abuse outside of work is affecting performance as opposed to being intoxicated or high at work). 

This can be done by having an Employee Assistance Program (provided by an external provider); having a mental health and wellbeing policy; and an 'RUOK' approach - whereby managers encourage a culture of everyone looking out for each other and literally asking, are you ok? After all, such welfare approaches are exhausted over a reasonable period of time an employer would be safe to move to disciplinary approaches. 

Employers may also need to assess whether the issue is widespread, ie. a workplace culture of abuse. If this is the case, then there maybe engrained cultural issues that need to be investigated and remedied.   

What can employers do?

Workplaces are encouraged to establish a workplace drug and alcohol policy and procedure that can be followed in the event of a drug or alcohol-related incident in the organisation. 

WISE can assist you in drafting these policies, or assessing your current policy, and training staff. Alternatively, we can provide investigative services for any incidents that have occurred in the workplace.