Worker argued he was never warned or notified of alleged misconduct
The Fair Work Commission (FWC) recently dealt with a worker who argued for an unfair dismissal case after his employer fired him for intoxication but with prior notice or warning of his “misconduct.”
Prior to being fired, the worker was a full-time employee who provided financial advice to various clients at the company he worked for, according to the FWC.
Months after his employment, the employer dismissed the worker on the grounds that the latter engaged in serious misconduct because of being intoxicated while at work.
According to his employer, the worker was drunk and disorderly "through appearing hungover and being intoxicated, lacked coordination, had bloodshot, glossy looking eyes, slow pupil response, his inability to complete his work on this day and slurring of speech."
Thus, consistent with the worker's employment contract, the employer requested the worker take an independent drug and alcohol test, but he refused. Hence, it requested the worker to return home.
The following day, despite the employer's contentions that the worker appeared intoxicated, the worker denied such an allegation and noted that the alcohol smell was from a "big night on the booze the night before."
The worker further noted that his employer immediately dismissed him without any notices or feedback before the incident regarding being drunk and disorderly.
He argued that he even received positive feedback from other staff, including the company's managing director. So, the worker was caught off guard when the dismissal happened.
However, the employer contended that the worker's misconduct was "a health and safety risk, inconsistent with the contract of employment, caused a serious and imminent risk to the reputation, viability or profitability of the Respondent's [employer’s] business, that he was unfit to be entrusted with duties."
In its decision, the Commission dismissed the unfair dismissal case as it found insufficient reasons to consider it harsh, unjust, or unreasonable.
On the allegations regarding being drunk and disorderly, the Commission noted that it was satisfied that the worker was indeed intoxicated since "there was an acknowledgment from the [worker] that he had at least one or two drinks at lunch and/or he had intoxicated himself last night."
"The [worker] may have caused serious and imminent risk to the reputation of the Respondent's business in terms of profitability and reputation had poor advice been given, given that he was impaired to the point that the employer did not feel that they could be entrusted with his duties," the Commission said.
Lastly, the FWC noted that the employer had given the worker enough time to respond to the allegations of his intoxication and failure to undertake drug and alcohol tests contrary to the worker's claims.
