Worker ‘harshly’ sacked for hangover call: FWC

By Andrew Hobbs on September 13th, 2017

A factory worker has been awarded $8,229 in compensation by the Fair Work Commission (FWC) after it found a decision to dismiss her was valid, but ‘harsh’.

Avril Chapman was sacked for misconduct by Tasmanian fish processor Tassal Group in May after calling her manager at 4:56pm on 25 April to leave a message saying she had “overindulged” and would not be fit for work the following day.

“Hi Michelle, it’s Avril, one of your loved pains in the a**e,” the message began.

“It’s ANZAC Day, my birthday, and I have to admit I have overindulged, 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.”

FWC deputy president David Barclay found that Ms Chapman’s refusal (or failure) to attend work without reasonable justification was a valid reason for dismissal, accepting Tassal’s submission that the conduct had a sufficient link with the parties’ employment relationship.

“The evidence suggests that had [Ms Chapman] had any real intention of being available for work, she could have gone to bed early on 25 April 2017,” he wrote.When making the decision to dismiss her, Tassal senior manager Duane Baker and the company’s industrial relations consultant Rodney Burles considered a number of factors.

Key to the FWC decision was the fact that Ms Chapman had previously been given a written warning for breaching the company’s code of practice.

Answering machine message

That breach occurred on 27 December 2016, when Ms Chapman left the following message on the factory’s answering machine at 8:33pm: “I won’t be at work today. I am non compos mentis, which means I’m f***in’ s**tfaced. I just found out my brother’s got advanced lung cancer and I’m a bit upset about it all. Yeah… Sorry.”

Mr Baker determined the significance of that warning, coupled with the latest phone call, was enough grounds to warrant dismissal based on a breach of the company’s code of conduct.

But deputy president Barclay found that the breach was related to the bad language of the call, rather than what it conveyed, and added that the breach was of limited significance to the matter.

“To take the warning into account as a strike (which [Tassal] no doubt did) was harsh,” he wrote in his judgement.

“I regard the case as being one where [Tassal] should have proceeded on the basis that there was no conduct which would be relevant to the issues arising in this case.

“Had [Tassal] proceeded on that basis I do not think termination would have been appropriate. Accordingly, I find that [Tassal] misused the significance of the prior warning in coming to the conclusion that dismissal was appropriate.” Deputy president Barclay agreed with Tassal that Ms Chapman’s reinstatement to her position would be inappropriate, citing a loss of trust and confidence between the two groups.

Deputy President Barclay awarded cash as compensation to Ms Chapman, but took 25% off the maximum payout she was entitled to, after she had already been paid out for accumulated leave, and after Tassal argued there should be a reduction of 30-40% for contributory conduct and misbehaviour.

Avoiding the risks

If put in a similar position, what might you have done? Would you have been content to give another warning, or is this the type of honesty that makes it difficult to continue working together?

Dismissing an employee, even when shown to be valid, can expose companies to a number of legal risks – which is why it is critical to ensure that the dismissal is lawful.

To help companies avoid this problem, Portner Press has released Managing Lawful Dismissal, an eBook that guides you through what you must consider before dismissing an employee and how you can protect yourself from legal risk.

Written by the Editor-in-Chief of the Employment Law Practical Handbook – Charles Power – the information in this eBook will help you understand:

  • what makes dismissal unlawful, including what constitutes unfair dismissal;
  • when and how you can lawfully dismiss an employee;
  • how your policies and procedures can help you to manage dismissal in your workplace;
  • the alternatives to dismissal; and
  • your notice and termination pay requirements.

The recriminations of making an unfair decision to dismiss an employee can be costly and disruptive to your business. Don’t make a decision without having first consulted the Managing Lawful Dismissal eBook. Get your copy today.

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