The festive season is upon us and as the parties ramp up, the attendances at work can suffer in the great Australian tradition of chucking a sickie. Many businesses face the task of controlling employee absences in the face of employees having one too many at the office Christmas function, the Client Christmas function or just on their own personal time enjoying the Christmas comradery.
In a recent decision by the Fair Work Commission on 7 September 2017, Avril Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd [2017] FWC 4630, a worker who was sacked for taking a sickie after drinking too much alcohol on Anzac Day, which happened to be her birthday, was awarded $8,229.00 in compensation from her employer after she was found to have been treated harshly.
The worker, Avril Chapman, left a voicemail for her employer on the Anzac Day public holiday, being Tuesday, 25 April 2017, at 4:56pm saying, “Hi Michelle, it’s Avril, one of your most loved pains in the arse ... Um it’s Anzac Day, my birthday, and I admit I have overindulged so I’m taking into account one of the golden rules, be fit for work, and I’m not going to be fit for work so I won’t be there. But um love ya, catch ya on the flip side.”
Avril’s manager heard the voicemail the next morning on 26th April and when Avril returned to work on 27th April, she was given a letter by her manager stating she was being stood down without pay. The letter stated that “You ... deliberately made a decision to consume alcohol to the extent that you would not be fit for work on 26 April 2017 when you were required to attend and be in a fit state to carry out your duties safely.”.
In her response, Avril said she did not deliberately make the decision to consume alcohol to the point where she would be unfit to attend work the next day. Avril contended that “It was my birthday, and friends dropped by unannounced .. I had my official birthday party on the Monday night and wasn’t expecting visitors on Tuesday, however, visitors I got … Would it have been wiser for [me] to call at 6am on the 26th and plead illness? … It was not my intention to deliberately take the day off, the events were not planned and not expected, and again, I feel that contacting management on the 25th was the right and responsible thing to do.”
In submissions to the Fair Work Commission, the employer pointed out that Avril had a previous warning for similar conduct. In December 2016, Avril left a voicemail on her manager’s phone at 8:33pm saying, “Hello, it’s Avril. Um ... I won’t be at work today. I am non compos mentis, which means I’m f***in’ s***faced. I just found out my brother’s got advanced lung cancer and I’m a bit upset about it all yeah. Sorry.”
When deciding the Unfair Dismissal Application lodged by Avril, the Fair Work Commission concluded that whilst there was a valid reason for the dismissal, the termination was harsh. Therefore, the case was found in Avril’s favour. The Fair Work Commission found that the employer was not able to rely upon a previous warning as a ground for standing Avril down. As reinstatement was determined to be inappropriate, the employer was ordered to pay Avril compensation in the gross sum of $8,229.00.
For employers, when deciding to terminate an employee’s employment, this case is a clear example of why it is important to seek legal advice beforehand to minimise or avoid the possibility of any unfair dismissal action and the accompanying legal costs and distraction to business that attaches to that action.
To discuss how we can assist your business when deciding to discipline or terminate an employee, please contact our Employment Lawyer, Simon Kumar, on 02 4626 5077 or skumar@marsdens.net.au.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
