Drop Down Drunk and Reinstated by Kate Ausden

Kate Ausden Blog

Maybe Australian employees shouldn’t be so scared about getting drunk at a work function?

In a recent unfair dismissal case, the FWC has ordered a female employee be reinstated after being summarily dismissed for being drop down drunk at a work function.

The female employee was representing her employer at a client function. It is undisputed that she was so drunk she passed out several times, vomited (while having her hair held by a third party) and needed assistance to go to the toilet and eventually leave the venue, the Sydney Opera House. It is disputed that she made comments, some disparaging and other sexual in nature, to other attendees at the function.

The employer was informed about the employees conduct some five days after the work function. The employer only notified the employee that she was under investigation for her conduct at the work function some eleven days after it is alleged to have occurred. Relevantly, the employee remained at work for the entire time having not been suspended during the investigation.

In summary dismissal matters, an employer must be convinced that “the employee’s conduct has been so inconsistent with his duties under the employment contract that it strikes down any reasonable suggestion that the employer-employee relationship can be continued in the future.”

While there was no dispute the employee was drop down drunk and vomiting at the work function, the FWC was unconvinced about the employer’s evidence in relation to comments made by the employee and was critical of the incomplete and truncated investigation conducted by the employer. The FWC said the employer’s evidence was either “strangely inconsistent” or worse, that the employer had knowingly relied upon a “false allegation” in order to summarily dismiss the employee.

So, “a single act of drunkenness” for which proper contrition and remorse is offered and, in the absence of any evidence that it damaged the employer’s reputation, would “not represent misconduct that provided a sound, defensible and well-founded reason for dismissal.”

In the words of Commissioner Cambridge:

“Frankly, if one act of inoffensive drunkenness at an after work function provided a valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs.”

The FWC ordered that the employee be reinstated.

Trudi Puszka v Ryan Wilks Pty Limited T/A Ryan Wilks Proprietary Limited [2019] FWC 1132 (7 March 2019)