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Drinks - May 14, 2019

Be wary when mixing beverages

Alcohol is everywhere. Friday night liquids, work lunches, Christmas parties, meetings, the listing is going on. And with this, there’s the inescapable reality that once in a while, someplace, a worker could have too much of it. So when can an agency take disciplinary motion if this occurs? The current Fair Work Commission’s (FTC’s) choice on Trudi Puszka v Ryan Wilks Pty Ltd [2019] FWC 1132 (Puszka) shone the highlight on this problem and raised the question of the way large the misbehavior needs to be to be able to justify a dismissal.

The ‘at work’ prerequisite

The starting point for assessing a corporation’s capacity to deal with employees’ behavior is whether or not the behavior happens ‘at paintings’.

Previous cases have shown that being ‘at paintings’ extends to any vicinity in which an employee plays work obligations or attends paintings functions (inclusive of patron functions, offsite events, and Christmas events). Misbehavior at all of these locations can be subject to agency disciplinary techniques.

However, as soon as the agency or consumer occasion concludes, a worker ceases to be ‘at work’. This key point is what decided the outcome in the case of Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156, where a male employee was determined to be unfairly dismissed for severe misbehavior (inclusive of kissing a lady worker without her consent and feedback approximately any other female employee’s underclothes) due to the fact the misbehavior befell in a bar upstairs from the paintings Christmas feature and after it had concluded.

The FWC government have mounted that if the behavior does now not arise at work the company can subject the worker most effective if:

the behavior is possibly to purpose severe harm to the relationship among the agency and employee; or
the conduct damages the enterprise’s pursuits (eg recognition or operations); or
the behavior is truly incompatible with the worker’s obligation as a worker.

‘Inoffensive drunkenness’

That could appear straight forward in most cases, but in Puszka the strains have become particularly blurred whilst a task administrator attended a farewell hosted with the aid of the Sydney Opera House, her employer’s consumer.

The employee became intoxicated on the function and proceeded to vomit at the floor of the Opera House’s bar vicinity, earlier than requiring assistance to go away due to her intoxication. The employee faced disciplinary motion when her enterprise discovered out approximately the incident, and the employee turned into dismissed.

In a fairly surprising twist, the FWC’s Commissioner Cambridge no longer only determined that the decision to push aside the employee changed into harsh but additionally reinstated the worker in her activity. In the Commissioner’s view, “an unmarried act of drunkenness at an after-work function which did not involve any abusive or aggressive behavior, and for which no severe hazard to the recognition or viability of the organization’s commercial enterprise can be established, would not constitute misconduct that supplied a sound … cause for dismissal”.

The Commissioner went on to say: “Frankly if one act of inoffensive drunkenness at an after-work characteristic provided a legitimate reason for dismissal, I suspect that most people of Australian people can also have doubtlessly misplaced their jobs.”

While the decision has caused pretty a stir, it enables make stronger that the life of misconduct itself (whether intoxication or other impropriety) never mechanically offers upward thrust to the proper to dismiss.

Each situation ought to be tested in my view. When it comes to out-of-work behavior, employers nevertheless need to perceive a great effect at the enterprise or a good sized compromising of the employment relationship in an effort to justify any selection to dismiss.