Work functions and alcohol consumption

The Fair Work Commission has dismissed an application for an unfair dismissal remedy brought by a manager of a company who permitted staff to consume alcohol at a work function which was off site but during normal hours of work when he had been instructed not to do so and when it was contrary to the employer’s policies and procedures.

  • “[13] I make the following factual findings. First, I accept Mr Scerri’s evidence that he clearly told Mr Wyss, twice, that no alcohol was to be consumed, and that Mr Wyss acknowledged that he understood this. This was clearly a lawful and reasonable direction.
  • [14] Secondly, I find that on 4 August 2022, Mr Wyss did not tell employees that they must not drink at the lunch. I do not accept Mr Wyss’s evidence that he did so. It is not credible for Mr Wyss to say that he instructed the team not to drink, because he himself was drinking. I accept the evidence of Mr Filomeno, Mr Sapountzis and Mr Riley that Mr Wyss did not tell any of them not to drink. They were credible and creditable witnesses. Their evidence candidly acknowledged their own failings on the afternoon in question. In his cross-examination of these witnesses, Mr Wyss did not suggest to them that their evidence on this point was wrong. I note that Mr Bray’s unsworn witness statement, tendered by Mr Wyss, did not say that Mr Wyss had instructed the team not to drink. It said merely that Mr Wyss had told employees that he would not pay for their drinks. Mr Wyss failed to follow Mr Scerri’s lawful and reasonable direction.
  • [15] Thirdly, I find that Mr Wyss did not take Mr Scerri’s instruction seriously. This is obvious from the fact that Mr Wyss not only failed to tell the crew not to drink, but decided to drink himself. Further, I accept the evidence of Mr Scerri about his discussions with Mr Wyss about alcohol consumption at the event in early 2022, and Mr Scerri’s evidence about his telephone conversation with Mr Wyss on 15 August 2022, when Mr Wyss acknowledged that employees had been drinking at the lunch and said that it was not a ‘big deal’. Mr Scerri was a credible witness. His evidence was clear and convincing. I also accept the evidence of Mr Riley that during the lunch, Mr Wyss said ‘cheers’ and told Mr Filomeno not to tell Mr Scerri that they were drinking. Mr Wyss did not deny these things.
  • [16] Fourthly, I find that the consumption of alcohol by Mr Wyss and crew members was contrary to the company’s drug and alcohol policy, because at the time of the lunch on 4 August 2022, their working day had not yet ended. The policy provides that employees must not ingest alcohol during work hours. Mr Wyss’s contract stated that his normal working hours were from 8.00am to 4.30pm, inclusive of a lunch break. Mr Wyss had finished his work for the day but he remained on the company’s time. Further, he and the other employees still had to drive their company vehicles. Mr Wyss acknowledged that the company had a zero alcohol policy and that driving company vehicles under the influence of alcohol was a breach of the policy. He contended however that there was no evidence that he had alcohol in his system at the time he drove his work vehicle after the lunch, and that he believed he would have had a zero blood alcohol content, because he had only had the one drink. I find on the balance of probabilities that alcohol remained in Mr Wyss’s system. But in any event, he breached the policy by drinking during work hours.
  • [17] Fifthly, I reject the suggestion of Mr Wyss that the company had an inconsistent approach to the consumption of alcohol. The policy was clear. There was to be no alcohol on company time or in the workplace. The CEO had a discretion to permit limited alcohol for approved functions and events, which he did from time to time. I accept Mr Scerri’s evidence that when he exercised this discretion, arrangements were made to ensure that employees could return home safely, such as by providing taxi vouchers. Mr Wyss said that on the two Fridays preceding the lunch on 4 August 2022 he had attended lunches where alcohol had been served, but that he had not been provided with taxi vouchers. Mr Scerri said that he found this hard to believe. Whatever occurred here, there is no suggestion that the company had not approved the use of alcohol at these events. But on 4 August 2022, no permission had been given for alcohol to be consumed. An explicit direction had been made to the contrary.
  • [18] Sixthly, I reject the suggestion of Mr Wyss that, because the crew was only assisting him on the project and were not his direct reports, he was not responsible for them. Mr Wyss was the senior person present at the lunch. It was Mr Wyss who asked for Mr Scerri’s permission to take the team to lunch. It was Mr Wyss who was told, twice, that there was to be no alcohol.
  • [19] I find that Mr Wyss knew that Mr Filomeno would be returning to the project site to finish the cleaning up work after lunch. I accept Mr Filomeno’s evidence that Mr Wyss told him that he could return to finish the work later. Mr Wyss therefore must have known that Mr Filomeno would or could be working after having consumed alcohol at lunch. And he also knew that he and other employees would be driving their company vehicles.
  • [20] Finally, I reject Mr Wyss’s suggestion that, because of their family and other personal connections to the management of the company, the evidence of Mr Filomeno, Mr Sapountzis and Mr Riley was not credible. I found their evidence to be convincing.

Consideration

  • [21] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). A valid reason is one that is sound, defensible and well-founded.
  • [22] Plainly the company had a valid reason to dismiss Mr Wyss. He ignored Mr Scerri’s explicit instruction that he remind employees not to drink alcohol, and that no alcohol be consumed at the lunch. He failed to follow a lawful and reasonable direction. He breached the company’s drug and alcohol policy. Further, Mr Wyss allowed Mr Filomeno and also Mr Sapountzis to resume work at the project, and allowed employees to drive their company cars, after they had consumed alcohol. This was inconsistent with his responsibility as the senior employee at the lunch. In my assessment, Mr Wyss’s conduct amounted to serious misconduct. He defied Mr Scerri’s direction and company policy in respect of an important workplace safety matter. He told Mr Filomeno not to tell Mr Scerri that they had been drinking. This behaviour was a breach of Mr Wyss’s duty of fidelity to his employer. It was wilful and deliberate behaviour that was inconsistent with the continuation of his contract of employment. I note that, even leaving the application of the policy to one side, Mr Wyss’s failure to follow Mr Scerri’s direction was of itself a valid reason for dismissal. The presence of a valid reason for dismissal in this case weighs in favour of a conclusion that Mr Wyss’s dismissal was not unfair.
  • [23] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and afforded an opportunity to respond to any reason related to their conduct or capacity (ss 387(b) and (c)). Both of these things occurred in this case. The company notified Mr Wyss of the reasons for his dismissal and gave him an opportunity to respond to allegations at the meeting on 16 August 2022. I do not accept Mr Wyss’s evidence that Mr Scerri did not listen to him in the meeting of 16 August 2022. Based on Mr Scerri’s account of the meeting, which I accept, Mr Wyss had an opportunity to explain himself. He simply had no adequate explanation. As discussed further below, one thing Mr Wyss could have said, but did not say, was that he was very sorry and that he understood that he had done the wrong thing. I accept the evidence of Mr Scerri that Mr Wyss told him that he must have had a ‘mind lapse’, suggesting that he had forgotten about the clear instruction that had been given to him. This was a completely untenable statement, especially given Mr Wyss’s comment to Mr Scerri on 15 August 2022 that the matter was ‘bullshit’ and ‘not a big deal’. Mr Scerri denied that he shouted at Mr Wyss. I believe him. Mr Wrobel said in his unsworn statement that Mr Scerri raised his voice. I find this unsubstantiated; Mr Wrobel did not attend the proceeding and was not cross-examined.
  • [24] As to the other matters which the Act requires the Commission to take into account, the company did not refuse, unreasonably or otherwise, to allow Mr Wyss to have a support person present to assist in discussions relating to the dismissal (s 387(d)). Mr Wrobel accompanied Mr Wyss to the meeting on 16 August 2022 as a support person. If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about this prior to dismissal. In this case, the reason for dismissal related to conduct, not performance.
  • [25] The Commission must consider the degree to which the size of the employer’s enterprise and any absence of dedicated human resources specialists could impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). The company is not a small employer and has human resources advisers. These considerations carry no weight.
  • [26] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). I take account of the fact that prior to his dismissal Mr Wyss did not show any remorse for his flagrant disregard of Mr Scerri’s direction and company policy, nor did he display any insight into the seriousness of his conduct. At the hearing, Mr Wyss said that he ‘probably should not have had a drink’ and that he ‘should have told [employees] … they were not allowed to do that’. This was a half-hearted and belated apology, if it was one at all. Mr Wyss did not apologise to Mr Scerri on 15 or 16 August 2022. He told Mr Scerri that the matter was ‘bullshit’. He told Mr Scerri that he did not think that the lunch period was company time. That excuse would notionally apply to the other employees as well. But of course it was no excuse at all. What Mr Wyss did not say to Mr Scerri was that he had done the wrong thing, that he was very sorry, and that he would never do it again. Even after his dismissal, Mr Wyss continued to argue that he had done nothing wrong, when quite obviously he had.
  • [27] I take account of the fact that on 20 April 2022, Mr Wyss had been given a final warning for having abused Mr Scerri in breach of the company’s code of conduct.
  • [28] It is relevant to consider whether immediate dismissal was a disciplinary response that was proportionate to Mr Wyss’s conduct. In my view it was. He defied his employer’s direct instruction. He breached the policy. He failed to have others comply with the policy. He allowed crew members to drive after having consumed alcohol at a lunch for which he was supposed to be paying on behalf of the company. He allowed employees to resume work after drinking. Mr Wyss said that it was unfair that he was dismissed, whereas the three other team members who drank alcohol were given final warnings. I disagree. Mr Wyss’s conduct was much worse than that of the other employees. He flouted a direction of his employer. The other employees did not. And although the other employees, like Mr Wyss, breached the policy, they expressed contrition to the company. Mr Wyss did not. Further, Mr Wyss was in a position of seniority and should have held himself to a higher standard.
  • [29] Mr Wyss contended that the company’s conclusion that he had committed serious misconduct was inconsistent with the fact that he was allowed to go back to the project site on the evening of 4 August 2022. He said that by that time, Mr Scerri knew that he had been drinking at the lunch and that he was returning to the client worksite that evening. I reject this argument. Mr Scerri said, and I accept, that he did not know that Mr Wyss was returning to the site that evening. Mr Wyss also submitted that he was allowed to continue working from 4 August to 15 August 2022, which suggested that his conduct at the lunch could not have been that serious. I reject this. The matter had to be investigated. The circumstances did not reasonably require an immediate suspension.
  • [30] Mr Wyss said that the company had an agenda to get rid of him, and that this was clear from the fact that immediately after his dismissal, a new person was hired. But a new person was hired a week later, not immediately. The evidence does not substantiate Mr Wyss’s contention that the company was looking for a reason to dismiss him. Even if this had been the case, Mr Wyss gave the company such a reason: he flouted Mr Scerri’s explicit direction, as well as the company’s alcohol policy. Mr Wyss claimed to be owed a bonus by the company. Mr Scerri denied this and said that bonuses were discretionary. Mr Wyss has not established that he has any entitlement to outstanding payments from the company. In any event this would be a matter for a court, not the Commission.

Conclusion

  • [31] Taking into account all of the circumstances, I consider that the dismissal of Mr Wyss was not harsh, unjust or unreasonable. It was not unfair. Mr Wyss’s application is dismissed.”

 

 

Matthew Wyss v Omnigrip Direct Pty Ltd [2022] FWC 3174 delivered 1 December 2022 per Colman DP