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05 December 2018
The Fair Work Commission (FWC) recently made a significant decision on out-of-hours conduct in finding that ALDI had been justified to dismiss an employee for throwing a full glass of beer over the heads of other employees at a work Christmas function.(1)
In November 2017 supermarket chain ALDI held a Christmas party at a hotel for its warehouse operations staff based at the distribution centre in Dandenong.
Mr Vai, a warehouse operator who had been employed by ALDI since 2013, had been drinking kava at home before the function and was becoming increasingly agitated at the hotel when he was refused service by the bar staff.
Several section leaders attempted to speak to Vai to calm him down as he was becoming boisterous. However, Vai subsequently threw a glass of beer in the direction of the security guards, which went over the heads of his colleagues and smashed against a wall.
ALDI investigated Vai's conduct, which included reviewing CCTV footage of the incident and interviewing several employees who had witnessed it.
The week after the function, Vai was invited to a meeting to respond to the findings of the investigation. He was subsequently dismissed for serious misconduct "because he threw a glass after having been spoken to by three Section Leaders" and "as per company policy, provocation is not accepted as an excuse for physical violence".
Vai brought an unfair dismissal application to the FWC on the grounds that:
Vai sought compensation of A$32,442.80 on the basis that he would have been working for ALDI for at least another two years.
In his submissions to the FWC, Vai further argued that:
Vai also relied on the decision in Keenan v Leighton Boral Amey Joint Venture ( FWC 3156), in which the FWC reinstated a team leader after finding that the employer's unlimited service of free alcohol undermined its insistence on compliance with conduct standards.
In Keenan, the circumstances involved conduct that occurred after a Christmas party at which:
Commissioner Gregory found that the circumstances in this matter distinguished it from Keenan as:
These circumstances led the commissioner to find that the function had been within the scope of ALDI's legitimate supervision. Further, while it had not made a specific effort to speak with employees in advance of the function to confirm what standard of behaviour were expected, it had taken reasonable steps to ensure that the behaviour of those attending would not get out of hand.
The commissioner acknowledged that employers organising Christmas events must take reasonable steps to maintain the standards of safety and behaviour. However, the commissioner also said that any employee attending has a responsibility to act within reasonable bounds and that Vai could not be considered to have acted in this way.
Given the potential to cause significant harm, and the fact that the bar had been closed shortly after the incident and the party had been brought to an end, the commissioner was satisfied that Vai's "behaviour in the present matter was just as significant and serious [as in Keenan], if not more so, given the potential for significant physical injury to have resulted". The commissioner also held that ALDI's issuance of a warning in these circumstances would not have been appropriate given the risk of harm, and that even though the glass had fortunately not hit anyone, this did not lessen the potential significance of what had occurred.
The commissioner also mentioned that although Vai being intoxicated might have been viewed as a mitigating factor, it did not enable him to avoid responsibility for what occurred.
The commissioner held that ALDI had dismissed Vai for a valid reason and that he therefore had not been unfairly dismissed.
This case emphasises that while employers have a responsibility to maintain appropriate standards of behaviour at work functions where alcohol is present, employees also have an obligation to act within reasonable limits – they cannot absolve themselves of responsibility for their actions at such functions simply because their employer has provided alcohol.
Employers should ensure that responsible service of alcohol measures are in place at any work function, and that the service of free alcohol is not on an unlimited help yourself basis. Such measures could include:
For further information on this topic please contact Amie Frydenberg or Jenni Mandel at Lander & Rogers by telephone (+61 2 8020 7700) or email (firstname.lastname@example.org or email@example.com). The Lander & Rogers website can be accessed at www.landers.com.au.
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