Unfair dismissal; beware the sickie

The Fair Work Commission in an unfair dismissal case has concluded that an employer had a valid reason to dismissal an employee who called in late an Anzac day to report that  she would not be fit for work the next day because of the consumption of alcohol but that the decision to do so was too harsh a penalty. The employee received an award of compensation which is explained at the bottom of this extract from the decision.

“The conduct of the Applicant which led to her dismissal, save for the issue of whether alcohol was the reason that the Applicant chose not to attend work, is not in dispute. On 25 April 2017 the Applicant telephoned the Respondent at 4.56 p.m. and left a message as follows:

“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 massage was heard the next morning. It prompted Mr Baker to be concerned that the Applicant 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. He felt this conduct was likely to amount to misconduct……. I conclude there was a valid reason for the dismissal. The Applicant chose to over indulge in alcohol on the day before she was due to work to such an extent as to be unable to fulfil her obligations to attend for work the next day. The evidence suggests that had the Applicant had any real intention of being available for work she could have gone to bed early on 25 April 2017 given that there were only two people at her house and they were not socialising with the Applicant. The valid reason, as described by Mr Collinson in his closing was the refusal (or failure) to attend for work without reasonable justification.16 That submission was based on the fact that the Applicant had consumed alcohol to such an extent as to be unfit for work…………………..The case is not dissimilar to the situation of an employee “taking a sicky” without being ill. 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 Applicants acknowledgement that she could have gone to bed early and been fit for work the next day………………In this case we have a misguided approach to the employer to the effect that the Applicant has overindulged (in alcohol) to such an extent as to result in her being incapacitated for work in circumstances (unlike the previous instance) where there was no extenuating circumstance which might constitute a justification for that conduct. That constitutes the valid reason. However because this is the first time the Applicant has conducted herself in that manner in 5 years of working for the Respondent to terminate her employment was harsh. I agree with the Applicant that another sanction such as performance management or a further, perhaps even final, warning was appropriate.

I am also alive to the fact that had the Applicant notified the Respondent on the morning of 26 April 2017 of illness and incapacity for work then termination of employment would have been unlikely………..

In this case the Applicant was guilty of placing herself voluntarily in a position where she was unable to work by reason if the consumption of alcohol. This was in circumstances where she could have gone to bed early to sleep and put herself in a position to work. She also was less than candid with the Respondent regarding her consumption of alcohol.

I have found there was a valid reason for her dismissal but that it was harsh. Her conduct in a material way led to her own downfall. However the Respondent misused the prior warning as a reason to proceed to termination rather than a less severe sanction. Found that was the reason for the dismissal being harsh.

The reduction for misconduct is an exercise of an unfettered discretion. I take all circumstances into account. Doing the best I can I reduce the amount by 25%. As a result I award the Applicant $8229.00 gross by way of compensation.”

Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd (2017) FWC 4630delivered 7 September 2017 per Barclay DP