Workplace Misconduct – Things to consider when terminating an employee
Recently an employee who was terminated for workplace misconduct as as result of drinking too much alcohol on Anzac Day and was awarded $8229.00 after the Fair Work Commission found that her dismissal was valid but none the less harsh under the circumstances.
Avril Chapman was employed by the Tassal Group. Her job involved scaling, slicing, weighing and packing fish. She had been employed since 1 August 2012 and was terminated for workplace misconduct on 1 May 2017.
On 25 April 2017, Chapman telephoned Tassal at 4.56 p.m. and left the following message:
“Hi Michelle, its Avril one of your most loved pains in the arse. 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.”
The next morning the message was heard by a Tassal senior manager, Duane Baker, who was concerned that Ms Chapman was using a golden safety rule to excuse or justify her behaviour in consuming alcohol to an extent that she anticipated she would be unable to work the next day. Mr Baker felt that the behaviour was likely to amount to misconduct in that Ms Chapman had breached the Tassel’s Code of Conduct by not being responsible for her actions and accountable for its consequences.
Tassel provided a letter was given to Ms Chapman in relation to the workplace misconduct when she arrived at work on 27 April 2017. It read, “You had deliberately made a decision to consume alcohol to the extent that you would not be fit for work on 26 April 2017 when you were required to attend and be in a fit state to carry out your duties safely.”
Ms Chapman responded to the allegation of workplace misconduct by email on 27 April at 7.06 a.m.
“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,” read the email.
“It was by 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.
“Would it have been wiser for mw (sic) to call at 6 am on the 26th and plead illness? I think if I had done that then I wouldn’t be writing this letter now, but it wouldn’t have been the honest thing to do in my opinion.
“It was not my intention to deliberately take the day off, the events were not planned and not expected, and again, I feel that contacting management on the 25th was the right and responsible thing to do.”
FWC Deputy President Barclay found the company had a valid reason for terminating Ms Chapman. DP Barclay found, “It makes no sense to me that a person at 4.46pm, some 13 hours before having to work, and before being involved in any activities which might result in impairment for work would decide to predict that she will be unfit to work the next day,’’
“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.”
DP Barclay added that the case is not dissimilar to the situation of an employee “taking a sicky” without being ill. DP Barclay held that because this is the first time that Chapman has conducted herself in that manner in five years of working for Tassal her termination of employment was harsh under the circumstances, he stated “I agree with the Applicant that another sanction such as performance management or a further, perhaps even final, warning was appropriate,”
DP Barclay found that Ms Chapman’s lack of awareness, acceptance and commitment to meeting Tassal’s expectations demonstrates that the trust and confidence required for an employment relationship had been “destroyed”
Even though it was found reinstatement was not suitable, Ms Chapman was awarded $8,229 in compensation.
Workplace Misconduct – Lessons for employers
* Employers should consider all options before moving to termination of an employee
* Employers should consider things such as the length of a persons service and their previous employment record especially if unblemished
* If you are unsure about misconduct, call an expert and save yourself the headache.
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