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Is drunken conduct outside of work sufficient justification for termination of employment?

The short answer is: maybe. In this article, we examine two recent unfair dismissal decisions of the Fair Work Commission (FWC) with different outcomes.

The cases show that the behaviour of both employer and employee ‘after the fact’ can be just as significant as the intoxicated misbehaviour in question.

Fair dismissal

Mr Urso, a Qantas cabin crew member, went to a bar with a colleague in the evening after landing in New York. Later that evening Mr Urso was found unconscious on the floor of the bar toilet and taken by ambulance to hospital.

Mr Urso was discharged the following morning, but he was unable to return to work for his next flight and the cost of hospitalisation was borne by Qantas. After being medically cleared to return to work, Mr Urso was stood down, with pay, pending an investigation which culminated in termination of his employment.

Mr Urso argued that he was not responsible for his consumption of alcohol because the bar had engaged in “free pouring”. He claimed that he only consumed five drinks and that he did not anticipate that this would amount to 14 standard drinks and a blood alcohol level of 0.205.

On appeal, a Full Bench of the FWC found that this explanation was not supported by the evidence, and that intent was not a necessary element of misconduct constituting a valid reason for dismissal.

Mr Urso had a responsibility to limit his alcohol consumption to ensure he would be able to attend work the following day, and his failure to do this was sufficiently serious to constitute a valid reason for dismissal. The Full Bench also commented that taking responsibility for his intoxication and subsequent failure to attend for work may have been a mitigating factor had Mr Urso done so.

 Unfair dismissal

Ms Puszka, a Project Administrator for Ryan Wilks, attended farewell drinks for a fellow employee held at the Sydney Opera House. The Opera House was one of Ryan Wilks’ major clients.

The function was after work, held in a public bar and the attendees purchased their own drinks. Ms Puszka consumed a significant amount of alcohol and vomited on the floor of the bar before being assisted to a taxi by a friend. After becoming aware of the incident, Ryan Wilks conducted an investigation into the incident.

During the course of the investigation, allegations were made by two anonymous managers that Ms Puszka had:

• insulted Ryan Wilks and Sydney Opera House employees;
• made propositions of a sexual nature to a Sydney Opera House employee;
• vomited in the forecourt; and
• been escorted from the event due to her intoxication.

Ms Puszka admitted to the intoxication, vomiting and being escorted from the building, but denied making any disparaging remarks or sexual propositions. She also apologised for her behaviour. Ms Puszka was never stood down during the investigation process, but was ultimately summarily dismissed for serious misconduct.

The FWC found that the reliance on the allegations of disparagement and sexual harassment had no basis, and that Ryan Wilks had attempted to ‘trump up’ the severity of misconduct by relying on them. It was particularly significant that the person who was alleged to have been sexually harassed denied the conduct. With respect to the alleged disparaging comments, the FWC preferred the evidence provided by Ms Puszka’s witness, who was the only relevant person not drinking.

Although the FWC accepted that some form of disciplinary action would be fair, the act of getting drunk (and taking into account all the circumstances) could not represent a sound, defensible and well-founded reason for dismissal, let alone summary dismissal.

Ryan Wilks’ decision not to stand Ms Puszka down during the investigation also suggested that the severity of the misconduct did not warrant summary dismissal. The FWC ordered that Ms Puszka be reinstated and Ryan Wilks back pay her lost wages.  Ryan Wilks unsuccessfully appealed this decision.

Lessons

In both of these cases, the drunken misconduct had a sufficient connection with, or impact upon, the employer’s interests to potentially constitute a valid reason for dismissal.

However, it was the post-incident investigation, and the willingness (or otherwise) of the employees to accept responsibility for their conduct, which was most significant to the outcome.

If an employee engages in intoxication-related misconduct out of hours, employers should:

• Consider whether disciplinary action short of dismissal is the most appropriate response, or whether dismissal is fair and reasonable, paying particular regard to any contrition shown by the employee. Even in cases where termination of employment is appropriate, summary dismissal should be reserved only for the most serious and clear-cut cases.
• Conduct a thorough and unbiased investigation and only rely upon allegations that are substantiated as a reason for dismissal. In cases where dismissal is being contemplated, employers should generally stand an employee down (on full pay), consistent with the seriousness of the allegations.
• Give serious consideration to the need to engage an external investigator under legal professional privileged and take legal advice regarding the best course of action.

If you would like any further information in relation to the above, please contact our Employment, Safety and Migration team at Macpherson Kelley.

This article was written by Nicola Skeggs, Lawyer – Employment, Safety and Migration.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.