Boozy lunch valid reason for dismissal
In the recent decision of Mr Matthew Wyss v Omnigrip Direct Pty Ltd [2022] FWC 3174 (1 December 2022), the Fair Work Commission (FWC) has upheld the sacking of a supervisor summarily dismissed for disobeying a reasonable direction when he allowed his team to drink alcohol while celebrating the completion of a major project.
Background
From April 2021 until 16 August 2022, the Applicant was employed by Omnigrip Direct Pty Ltd (company), an engineering and construction company. At the time of dismissal, the Applicant was a supervisor.
After the Applicant and his team finished a project installing concrete islands for the City of Port Phillip, he called Omnigrip's chief executive to ask if he could take them out to lunch on the company's tab.
The chief executive agreed but said the workers couldn't drink alcohol and asked the Applicant to acknowledge this instruction, which he did. The chief executive made this request because the team members would need to drive the company cars back to the factory after lunch.
It must be noted that the engineering and construction company's drug and alcohol policy provides that employees cannot drink alcohol during work hours, nor drive company vehicles after drinking alcohol.
The Applicant was dismissed for serious misconduct after the company concluded that he had allowed members of his team to consume alcohol at lunch, and had himself consumed alcohol, contrary to a management direction and company policy. The Applicant admitted that he drank alcohol but denied that he allowed his team to drink. The Applicant submitted that his dismissal was unfair.
Finding
The FWC found the dismissal was valid on the following grounds:
The chief executive clearly told the Applicant that no alcohol was to be consumed, and that the Applicant acknowledged that he understood this. This was clearly a lawful and reasonable direction.
There was no evidence that could show the Applicant told the other staff not to drink.
The Applicant did not take the direction seriously.
The consumption of alcohol was contrary to the drug and alcohol policy as the working day had not ended.
The company had a consistent drug and alcohol policy and procedure.
The Applicant was the only senior person in attendance at the event and he was in control and supervision of the staff that attended.
Key takeaway points
Where an employer gives a specific lawful direction and this is not adhered to then this will be a reason for dismissal.
Employers should also consider reviewing and updating existing drug and alcohol policies. Also, where employers do not have such policies then they should consider implementing them.
Article prepared by:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
Sonia McCabe
Senior Associate
T 03 5226 8558
E: smccabe@ha.legal
Matthew Synoradzki
Graduate Lawyer
T 03 5226 8542
E msynoradzki@ha.legal
