Fair Work Commission
. The worker was awarded $9,827.20 damages and the right to get his old job back.
The cleaner, an international student employed by Glad Group Pty Ltd, was working in the office of CMC Markets when a manager caught him with a coffee cup from their kitchen, and reported him to Glad and request he be removed, which he duly was. Glad described the cleaner’s actions as “serious misconduct warranting summary dismissal” and said his actions had caused serious risk to business reputation and profitability.
In deciding that the dismissal was unfair, Fair Work Commission
vice-president Adam Hatcher got a little creative in his assessment, quoting popular philosopher Alain de Botton in saying, “Office civilisation could not be feasible without the hard take-offs and landings effected by coffee and alcohol.”
"However, far from uplifting him, that cup of coffee was the direct cause of his rapid descent into summary dismissal two days later," Hatcher added.
Hatcher said that the suggestion that the cleaner’s actions constituted theft “verges on abuse of the English language”.
Alan McDonald, managing director at employment law firm McDonald Murholme, praised the humorous take on the case by Hatcher.
“It highlighted the absurdity of sacking a worker for drinking coffee before he started work,” said McDonald. “Such an enlightened approach is refreshing and hopefully employers will be less inclined to dismiss workers for trivial and unmeritorious reasons but it took an international student to make the point.”
Speaking with HC Online, McDonald pointed out that referring to philosophers (and indeed Shakespeare, whose aphorisms are occasionally employed in court), allows judges and adjudicators to bring some clarity to grey areas in employment law.
“The Fair Work Act does not define the term ‘unfair dismissal’,” said McDonald. “One of the interesting aspects of employment law is that it has been left to the judges to define what is fair and unfair in the circumstances. They apply a common sense test that the dismissal must be ‘sound and defensible’ and with ‘procedural fairness’. This definition is vague.
“The advantage of references to Shakespeare, Alain de Botton or other iconic observers of life, is that they can express a common protocol in a few simple words, which the legislation cannot. Their cultured words are a sound alternative to rambling judgements, which have become all too common and are as a result confusing and out-of-date in the Twitter world of today.
“The manager of the company being cleaned might not understand the meaning of serious and wilful misconduct, but if he had some common sense – as reflected in the words of Shakespeare and Alain de Botton – there would not have been a dismissal.”
A cleaner who was sacked for partaking in a cup of coffee whilst waiting to start a shift has won an unfair dismissal case in the