Employee claims he was not on the clock because he finished work for the day
When it comes to alcohol at work, employers need to have clear policies and procedures in place that outline the acceptable and inappropriate use, as well as the potential consequences of misuse, including increased risk of injury, reduced productivity, and impaired decision-making. Additionally, alcohol consumption can create a hostile or unsafe work environment, leading to employee turnover and potential legal repercussions.
However, if the workplace has an approved policy and procedure in place regarding alcohol consumption, then it might be acceptable in certain circumstances, such as a company lunch or an employer-sponsored event.
In a recent case, the Fair Work Commission (FWC) dealt with the unfair dismissal claim of an employee who had allegedly allowed his team members to consume alcohol at lunch, contrary to management direction and company policy. The employee admitted to drinking alcohol but denied allowing his team to drink.
HRD previously reported on a dismissal case involving out-of-work misconduct, where the worker was at a bar and made threats under the influence of alcohol. HRD also explored the issue of whether an employee’s conduct on a non-workday can be a possible ground for termination.
Background of case
The employer in this case is an engineering and construction company, and the employee was one of its senior members.
Around August last year, when the employee’s team was finishing a project, records revealed that the crew “had worked hard and were exhausted, [and] one of the workers suggested that the team go to lunch when the works were completed.”
The employee called the company’s CEO and suggested he take the team out for lunch. The executive officer agreed but said that no alcohol was to be consumed.
According to the employee’s statement, when he arrived at the lunch venue, he told several of the crew that the company would pay for meals but that there would be no alcohol. He then went inside the restaurant and saw that two employees had already ordered food and drinks.
He said that, as he had finished work for the day and as others were drinking, he ordered himself a scotch and dry.
After a few weeks, the employee received a phone call from the CEO whom he talked to about the company lunch. The latter told him that he was stood down for the rest of the day.
Later, he was called to a meeting with the CEO and the company’s human resources adviser. The employee said that the CEO presented him with a “version of events” about the lunch and did not give him a chance to speak. He also said that the CEO began shouting and told him he was dismissed. Later that day, he received an email stating that his employment had been summarily terminated for serious misconduct.
The CEO said he “clearly recalled what he said” to the employee for two reasons. “First, he knew the team members would need to drive their company vehicles back to the factory after the lunch.” The officer said it was “usual practice for employees to commence work at company premises, then drive to their worksite in a company vehicle.” Secondly, the officer said he “previously had concerns about the [employee’s] attitude to the company’s drug and alcohol policy.”
The employer’s policy
The policy stated that alcohol is not to be consumed during paid work hours and that employees must not consume alcohol at any workplace, subject to the CEO’s discretion to permit limited alcohol consumption at events and functions.
The CEO recalled that, during a work event in early 2022, the employee had asked him why alcohol was not permitted at the event when it had been allowed on other occasions. The former replied that the company “had a zero alcohol policy, but if there were a formal function at which drinking was allowed, employees would be told, and arrangements would be made for them to get home safely afterward.”
The FWC found that the employer’s direction not to consume alcohol was “lawful and reasonable.” It said the employee “did not inform team members of the prohibition on alcohol consumption during the company lunch and subsequently breached the policy with little regard to the employer’s directions.”
“A breach of the employer’s policy had occurred and that despite ‘finishing work for the day,’ the employee still consumed alcohol during working hours per his contractual working hours,” the FWC said.
Was immediate dismissal an appropriate response?
The dismissal was “proportionate to the employee’s conduct,” the FWC ruled.
“He defied his employer’s direct instruction. He breached the policy. He failed to have others comply with the policy. He allowed crew members to drive after having consumed alcohol at a lunch for which he was supposed to be paying on behalf of the company. He allowed employees to resume work after drinking,” it said.
The employee argued that the dismissal was unfair since “other team members who drank alcohol were given final warnings,” but the FWC said that his “conduct was much worse than that of the other employees.”
“He flouted a direction of his employer, [while] the other employees did not. And although the other employees breached the policy, they expressed contrition to the company, but the employee showed no remorse,” the decision said.
Lastly, the FWC held that the employee “was in a position of seniority” and “should have held himself to a higher standard.” Thus, there was no unfair dismissal.
