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'It's my birthday and I'll drink if I want to.' Was the dismissal harsh?

Stephen Booth

At 4:46pm on 25 April 2017, Avril Chapman, an employee of Tassal, left a phone message for her manager:

It is Avril, one of your most loved pains in the ass. Um, it's Anzac Day, my birthday, and I admit I have overindulged so I am taking into account one of the golden rules to be fit for work and I am not going to be fit for work so I will not be there, but love ya.

Ms Chapman did not attend for work on 26 April. When she arrived for work on 27 April, she was asked to show cause why her employment should not be terminated, since it appeared that she had deliberately consumed alcohol, to reduce herself to a state unfit for work. 

Ms Chapman disputed that she had acted deliberately. She said friends dropped by unannounced, and she became aware it was “going to be a long night.” She emphasised that it was her birthday (texting “IT WAS MY BIRTHDAY!” when Tassal questioned her actions, as if that were a sufficient explanation), and otherwise accepted no responsibility for her absence. She said that she could have simply claimed to be sick on the morning of 26 April, and there would most likely have been no consequences. She claimed that showed her responsibility and respect by doing “the honest thing.

She accused Tassal of turning molehills into mountains, and “going in for the kill,” and arguing that after-hours overindulgence was none of Tassal’s business.

Tassal terminated Ms Chapman’s employment because she had deliberately rendered herself unfit for work, she had shown no contrition about it, and because she had received a warning in 2016 for leaving a message, laced with swearing, to say that she could not come into work because she had been drinking (the context being that her brother had been diagnosed with late stage cancer).

The Fair Work Commission (FWC) found Tassal did have a valid reason for terminating employment, because voluntarily becoming incapacitated for work was akin to “taking a sickie” without being ill. It was plain from the evidence that Ms Chapman had the opportunity to go to bed early and be fit for work the following day, but chose not to do so. While this was out-of-hours conduct, it had a sufficient link with her employment, and indeed she was aware of that when she left the message.

However, although there was a valid reason for dismissal, the FWC nevertheless concluded that it was harsh, because the offensive feature of the 2016 conduct was the swearing, not the fact that she had been drunk or absent because of the serious illness of a close relative. The basis of that warning was therefore different from the Anzac Day conduct. That conduct could have justified a warning, perhaps a final warning, but was not converted into a reason for dismissal by a prior warning for a different type of conduct, in the context of five years’, otherwise warning-free, service.

The FWC accepted that the employee was responsible for the loss of trust and confidence by her combative response, and refusal to accept that there was any wrongdoing on her part, but nevertheless as the termination was harsh, ordered compensation of $8,229.

So, what can we draw from this?

Firstly, positively for employers, the case confirms that making yourself unfit for work is not a valid basis for being absent, and is a breach of trust. Putting it another way, deliberate out-of-hours conduct, with the knowledge that it will impact on ability to work, can be a valid basis for termination.

Secondly, with respect to the harshness finding, employers have to be sure that any prior warnings, relied upon to bolster a termination decision, are indeed relevant to the incident at hand, or for such serious conduct that they amplify the seriousness of the incident. A warning for inappropriate language is not usually, in itself, a high range offence, and will not convert something otherwise fit for a warning into something more serious.

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