This Fair Work Commission decision shows the importance of being equipped with the right knowledge when summarily dismissing an employee.

On the face of it, an employer might think they are within their rights to fire an employee who admits to being excessively drunk at a work function. But if employers don’t exercise due diligence during the investigation process, they might find themselves with an unfair dismissal claim. This company found that out the hard way.

Commercial and industrial electrical contracting company Ryan Wilks has been forced to reinstate an employee and compensate her for loss of wages following a Fair Work decision that found the company had relied on false allegations as the basis of a summary dismissal.

The female employee, a project administrator, attended a work function at the Sydney Opera House (SOH) – a major client of Ryan Wilks – and was partying a little too hard, which cost the employee her job just two weeks later.

The project administrator, who was summarily dismissed, was the only employee present from Ryan Wilks at the event. Her employer fired her on the basis that she was drunk to the point of needing assistance to get home, that she had allegedly made derogatory comments about other Ryan Wilks employees, and that she sexually harassed a male employee of the SOH.

However, the male employee later clarified that he did not feel propositioned or harassed by the woman and, according to a document under subpoena, the SOH employee indicated that “even if she had propositioned him, particularly given she was drunk, he would likely not be offended”.

Despite knowing these allegations were false the employer still used them as grounds to summarily dismiss her in August 2018, a decision that has, unsurprisingly, backfired.

Of her other alleged misconduct, the project administrator only admitted to being drunk at the function, denying the other claims made against her.

“Yes, it is true I was drunk, so drunk that I actually vomited (which I apologised for) and got assistance to a taxi, which is a disgrace. I have never been so drunk in my life,” the employee says in the FWC decision.

“I’ve learnt my lesson. This is a wake-up call for me. I won’t be needing assistance or vomiting at functions in the future.”

Despite this admission, Commissioner Ian Cambridge found the project administrator’s termination to be “harsh, unreasonable and unjust”.

Inconsistent evidence

It’s clear that the employer made many unfortunate decisions when considering its disciplinary action. Michael Byrnes, a partner at Swaab law firm, told HRM, “The foundation for an employer dealing with situations of this kind is an objective, thorough and independent investigation with sound findings of fact. Any investigation needs to adduce and consider the best evidence available.”

The evidence the employer relied upon was from two anonymous SOH employees, referred to in the FWC decision as Manager One and Manager Two.

Manager One said they heard the project administrator say to the male SOH employee, “You can take advantage of me if you like.” And Manager Two recalls her saying, That’s okay, [SOH employee’s name], you can take advantage of me.”

However, this version of events was refuted by a sober witness (a friend of the project administrator) who recalled the project administrator saying, “don’t let anyone take advantage of me”.

On top of that, there is no mention in the anonymous statements about the project administrator making derogatory comments about employees of Ryan Wilks or the SOH, despite this being one of the accusations brought against her.

It’s clear that the sober witness’s statement was taken more seriously than the anonymous managers’.

“Although the evidence provided by [the sober witness] must be considered in the context of her friendship with the applicant, she nevertheless presented as a very believable witness. Her recollection of the conduct and words spoken by all of those in attendance at the function may be considered as far more accurate, particularly as it appeared that all other persons in attendance were consuming alcoholic drinks,” says Cambridge.

“The direct witness evidence provided by [the witness] who was a sober participant in the relevant events, must be preferred over the strangely inconsistent evidence of the employer.”

It’s unfortunate, according to Byrnes, that the employer relied upon this false information. While it’s not always easy deciding which witness is more reliable, in this case it’s crystal clear: a sober witness’s account was preferred over two anonymous statements. It seems like a no-brainer, which leads us to wonder, how did the employer think it was going to get away with this?

“In the event of conflict of evidence, the investigator needs to make a decision as to whose evidence needs to be preferred. That’s not necessarily an easy task, but it is something that needs to be done,” says Byrnes.

“That being said, [employers] can’t selectively pick and choose which evidence suits their particular position or preferred outcome.”

The Briginshaw Principle

In situations like this, Byrnes recommends employers use the Briginshaw Principle to help make a decision, which was developed off the back of a High Court decision titled ‘Briginshaw v Briginshaw’.

There are two standards of proof in common law. In civil cases, it is the ‘balance of probabilities’ and in criminal cases, it’s ‘beyond reasonable doubt’.

In this instance, the Briginshaw Principle would be used in balancing probabilities to determine whether or not the allegations had taken place. The standard demands that, in this case, the employer must establish that the allegations or facts were relevant at the time of dismissal.

“Where there are serious allegations involved, using the Briginshaw standard before you make a decision means you are doing so on the basis of sound fact,” says Byrnes.  

Disproportionate action

As it stands, this was the project administrator’s only recorded instance of misconduct, which is another reason as to why her punishment was viewed as harsh.

“If an employee has an unblemished record and has engaged in an isolated case of misconduct then there is a real possibility, generally speaking, that the FWC will pose the question, ‘Why was a first and final warning not sufficient?’ or ‘Why was termination required in this particular case?’,” says Byrnes.

In any case where there are isolated actions of misconduct, Byrnes says the outcome is clear.

“Unless the isolated case of misconduct was so serious as to effectively render the continued employment of an employee untenable, it’s likely that the FWC will find that termination of employment for the isolated misconduct disproportionate.”  

Leading up to her termination, the project administrator was in correspondence with the employer and asked for more information regarding what the actual allegations made against her were, and who had made them. The employer refused to reveal more information – another step in the wrong direction.

“An employee is entitled to be given sufficient particulars in order for them to respond to allegations. That includes details of the allegations made against the employee and also the evidentiary basis for those allegations,” Byrnes says.

While it’s not uncommon for small businesses not to have an HR function, you have to wonder if things might have been handled differently if they had someone with the right people skills on board.

While getting drunk and throwing up at a work function certainly isn’t ideal, Commissioner Cambridge raises an interesting point, “Frankly, if one act of inoffensive drunkenness at an after work function provided valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs.”