Intoxicated employee who threw colleague into pool “fairly” dismissed

by Victoria Bruce29 Jan 2016
A man who filed an unfair dismissal claim against his employer after being sacked for punching his boss in a drunken rage and throwing a co-worker into a swimming pool has lost his case.

Damien McDaid was fired after drunkenly shoving a co-worker into a swimming pool and starting a fight with his boss at a staff Christmas party in 2014.

McDaid, then the project coordinator of WA-based engineering firm FEC, later stated he had no memory of getting drunk or starting a fight with his boss, Craig Davies.

Mr McDaid filed for unfair dismissal, criticising his employer for supplying alcohol at the Christmas party.

Fair Work Commissioner Bruce Williams rejected Mr McDaid's unfair dismissal claim, as the dismissal was not “harsh, unjust or unreasonable” under Section 385 of the Fair Work Act 2009 (Cth) (“the Act”).

Commissioner Williams said it was "not surprising" Mr McDaid was fired after the events at his staff Christmas party, and said employees who consume alcohol should be responsible for their actions.

"Whilst in some circumstances an employer that provides alcohol at a work function and takes no steps to ensure it is consumed responsibly may be culpable for events attributable to the consumption of alcohol, such as a drunken employee being injured falling down stairs, employees who drink will also be held responsible for their own actions,” Commissioner Williams told AFR.

"The fact that someone has been drinking when they behave badly may in part explain their actions but it should not be accepted as an excuse for that misbehavior,” he says.
“How much alcohol someone drinks is a choice they make, and with that choice comes consequences,"

Commissioner Williams said while McDaid’s boss didn’t exemplify model behaviour that night either, given his role as general manager, he only exchanged blows with McDaid in self defence and did not initiate the fight.

On the day of the Christmas party, McDaid’s company had organized a day of go-karting followed by a Christmas party at the work that evening.

FEC provided food, soft drinks and alcohol throughout the function, but did not set limits to the amount of alcohol available to each individual.

After getting drunk at the party, McDaid pushed a senior engineer, fully clothed, into the swimming pool. His boss approached him and told him to leave by saying "f--k off", McDaid responded: "You f--k off."

Then McDaid pushed his boss, causing him crash into the front gate, AFR reported. The two men then exchanged blows.

Although McDaid criticized his employer for allowing a free-flow of alcohol at the work party, the commission didn’t sympathize with his cause.

However, in an unrelated case last year the Fair Work Commission ruled that a man who consumed 10 pints of beer, sexually harassed colleagues and told his bosses to “F—k off” was unfairly dismissed, partly because the company had supplied him with a free flow of alcohol.

The commission also found employers may not be in a position to insist on standards of conduct at functions if they serve unlimited amounts of free alcohol, Fairfax Media reported.
 
Commission vice-president Adam Hatcher told Fairfax Media the employee's conduct was the result of his intoxication at the Christmas function and this was a "mitigating factor", in his bad behaviour.
 
"An exacerbating factor in that respect was the manner in which alcohol was served at the function. In my view, it is contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time to allow the unlimited service of free alcohol at the function," Hatcher said.
 
"If alcohol is supplied in such a manner, it becomes entirely predictable that some individuals will consume an excessive amount and behave inappropriately."


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Opinion: Can an employee be dismissed for misconduct following a work function?

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