The employee was rostered to start work at 8am on 1 October 2022. During the shift, a restaurant supervisor became concerned about the employee’s level of fatigue and fitness for work and sent him home early.

The kitchen hand returned to work at 9:15pm that same day despite not being rostered or directed to do so. He stated he returned to work because he was concerned about the amount of work to be completed on Sunday morning and was keen to get started.

Shortly after returning to the workplace, the employee was again directed to leave. He was unsteady, argumentative, smelled of alcohol and appeared to be intoxicated. A colleague claimed the kitchen hand had attended a music festival nearby.

After not receiving shifts for the next week, the kitchen hand wrote to the employer apologising for his actions and requesting a discussion to rectify the situation. In response, he was directed to attend a meeting on 6 October to respond to allegations he attended the workplace under the influence of alcohol, breaching the workplace drug and alcohol policy.

The employer considered the kitchen hand’s response to the allegations and invited him to another meeting on 13 October to provide his response to the proposed termination of employment. The employer considered the employee’s response and decided to confirm its decision to dismiss him.

The employee lodged an unfair dismissal claim with the FWC, stating that his termination was harsh, unjust and unreasonable, as well as making claims of underpayment and workplace bullying.

Decision

Although the FWC was critical of the employer for failing to exercise care to ensure the employee safely departed the premises to return home when intoxicated, it found no evidence of underpayment or bullying, and confirmed that the decision to terminate the employee’s employment for breaching its drug and alcohol policy was valid.

The FWC noted that by presenting to the workplace in his condition, the employee posed a risk of damaging the employer’s reputation and interests, as well as damaging trust and confidence in the kitchen hand as an employee.

The employer’s dismissal process was found to meet the requirements outlined in the Fair Work Act 2009.

Learnings for business

This decision demonstrates the importance of following a procedurally fair process when a business has identified any allegations of misconduct.

Even though the FWC was unimpressed by the extent of care shown for the employee’s wellbeing when sent home, the employer was successful in demonstrating that his dismissal was not harsh, unjust or unreasonable as per section 387 of the Fair Work Act 2009.

How the Victorian Chamber can assist

Our Workplace Relations Consultants are expert and experienced in supporting businesses through best-practice dismissal processes to minimise the risk of a successful FWC claim.

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