Drinking on the Job: Expensive Lessons for Employers
History shows that a group of co-workers letting their hair down at an office function can sometimes lead to regrettable outcomes. Yet it doesn’t necessarily follow that a worker’s dubious behaviour will amount to serious or gross misconduct. A recent case in the NSW District Court highlights how an employer’s overall attitude towards staff conduct and misconduct will have an impact upon how particular employee behaviours should be perceived – something to keep in mind if employers are currently dealing with the aftermath of the annual work Christmas party.
At work ‘the morning after’
In the case of Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) 2013/148638 (8 December 2014), a state manager for Willis was summarily dismissed for what was described as gross misconduct. During a conference, the manager arrived at a morning session still intoxicated from the previous night’s drinking. The drinking had occurred at a work-related function. His behaviour in the morning included speaking loudly, laughing, throwing a lolly, smelling of alcohol, and at one point making animal noises. For the rest of the session, the manager worked quietly on his device at the back of the conference room. The employer terminated the man’s employment on the basis that his behaviour and intoxicated state that day amounted to gross misconduct.
The employer’s attitude to staff and alcohol
Judge Philip Taylor assessed a number of factors within both the manager’s behaviour and Willis Australia’s policies around staff drinking and general conduct. His Honour noted that Willis had a quite permissive attitude towards work-related alcohol consumption. Evidence of this included the provision of open bars at work events and a ‘follow the client’ approach to customer relations. In the latter case, this would include matching the alcohol consumption of a client. Taken as a whole, the employer’s attitude towards such behaviour was quite encouraging.
Decision to terminate
While the conference was not a client-based event, Judge Taylor noted that the overall encouragement given to staff around socialising and alcohol should be considered. His Honour did concede that the employer had been able to establish misconduct on the state manager’s part – but not serious or gross misconduct sufficient to warrant the summary termination of the manager’s employment. Damages close to $300,000 were awarded to the worker as a result of the employer’s decision to terminate.
Eye of the beholder?
For employers, the findings of Judge Taylor in the Willis case provide a ‘sobering’ reminder of how the courts can see things quite differently to employers around the issue of serious misconduct. On the surface, a state manager arriving at a conference session noticeably drunk might appear to be a classic case of gross misconduct. Yet the culture and attitudes of the employer around alcohol can have a palpable effect on how the courts might view any disciplinary measures taken against staff.
Clear contracts and policies
This is particularly so where employment contracts and internal policies do not adequately specify the meaning of ‘serious misconduct’ in the workplace. In such circumstances, the informal actions and permissions given by an employer to staff members around behaviour will be closely examined by the courts. In the case of Willis, the employer’s generally lax attitude towards alcohol consumption, combined with the manager’s quite mild misbehaviour the next morning, were such that the termination was not appropriate. To establish gross misconduct, aggravating factors such as violence, offensive language, or other extreme behaviour would be necessary.
If an employer considers terminating an employment contract on the basis of behaviour at or around a work-related function, Willis highlights the need to avoid hasty decisions. This is because if it is found that an employer’s attitude to work-related ‘partying’ is quite lax, then establishing serious misconduct for any alcohol-fuelled behaviour might be difficult. Clear contract definitions and policies around misconduct can help to reduce the kinds of expensive lessons that were seen to arise in Willis.