We often get asked how an employer can terminate an employee and whether the termination has breached the fair work legislation. The most recent employment law trend being employers dismissing employees which have become intoxicated during a work event or after work which has subsequently affected their employment.
Our most recent client enquiry was from an employer concerned with employee intoxication at the annual end of financial year celebrations. We encouraged the employer to take pro-active steps of implementing company policies governing intoxication, having the party on a weeknight and at a private venue.
While it is important to have pro-active measures in place, it is also important as an employer to understand the circumstances which may give rise to termination. One of the most recent cases in the Fair Work Commission found that a termination for intoxication was legal. In this case, the employee was employed with QF Cabin Crew Australia Pty Ltd (QF), a subsidiary of Qantas, as a cabin crew member. During a layover, the employee went out for drinks at a bar and was subsequently taken to hospital after being found unconscious on the bathroom floor. As the employee was unable to attend work the following morning, QF placed the employee on paid leave pending an investigation. The investigation ultimately led to the employee being terminated for misconduct.
The Fair Work Commission took into account the employee’s blood alcohol level of 0.187 and his failure to take responsibility for his actions. The Commission found the employee’s arguments refuting the blood alcohol level were not supported by any evidence. QF acted reasonably by dismissing the employee after the investigation substantiated that he had failed to comply with QF policies and consumed an excessive amount of alcohol prohibiting him from attending work.
The key to the above case is the steps taken by QF to investigate and substantiate the employee’s behaviour. It also advanced QF’s case by showing the high level of safety which is required of a cabin crew member.
When considering whether to dismiss an employee for being intoxicated at an after-work event, we recommend:
- Standing down the employee with pay;
- Conducting a thorough investigation into the employee’s conduct, including meetings with other staff members which were present;
- Recording the findings of the investigation in writing;
- Abandoning the claims against the employee which have failed to be substantiated in the investigation;
- Putting the findings of the investigation to the employee and allowing them an opportunity to respond;
- Considering whether dismissing the employee is a reasonable consequence for their behaviour;
- Providing the employee with a letter of termination setting out the findings of the investigation and reason for dismissal.
If you carry out the above recommendations, you will be in a stronger position to defend any application for unfair dismissal. However, it is also helpful to put in place the pro-active measures mentioned above in order to reduce your business’ exposure.