Hungover Employee Validly Dismissed Says FWC

By 4 September 2018Workplace

A Qantas employee has been left with more than just a bad hangover, after the FWC upheld his dismissal following an incident involving a night of excessive drinking which landed Qantas with a $20,000 hospital bill.

Background

The matter arose after a Qantas flight attendant called in sick for work after being hospitalised the previous evening for excessive alcohol consumption.

The employee filed an application for unfair dismissal, arguing that he did not consume an excessive amount of alcohol but rather only had “two peach martinis and three gin and tonics” during a night out with a co-worker.  The employee was in New York on a layover at the time of the incident and was due to report for work the next day.

Deputy President Dean heard evidence that nearing midnight on 22 July 2017 the employee was found vomiting in the bathroom of a New York City bar by his co-worker.  An ambulance was called and the employee was transported to Greenwich Hospital where he was treated for excessive alcohol consumption.

After being released from hospital in the early hours of the 23 July, the employee called in sick for work, noting that he was still feeling unwell and would not be able to work the return flight to Los Angeles departing later that day.

Qantas paid for the employees’ ambulance and hospital treatment, totalling $20,000.

Qantas suspended the employee on pay while it conducted an investigation into the incident.  Qantas ultimately dismissed the employee on the basis that the employee had breached a number of its policies which required employees not to engage in any activity that would manifestly increase the risks of illness, injury or other reason that would prevent them from performing their next operational duty.

Further, the employee’s termination letter detailed that Qantas believed the employee had been dishonest throughout the investigation by maintaining that his drink had been spiked and that he had not consumed more than five drinks.

FWC Ruling

The primary issue for determination was whether the employee consumed an excessive amount of alcohol rendering him unable to perform his work duties, in breach of the relevant Qantas policies.

Qantas submitted that the employee’s behaviour amounted to misconduct and established a valid reason for termination.

The tribunal heard evidence from medical experts as well as from the hospital staff who treated the employee.  This evidence revealed that the employee’s blood alcohol reading of 0.205 meant that he had likely consumed approximately 18 standard drinks in three hours, and that there was no evidence of drink spiking.

The FWC held that the employee’s dismissal was fair and proportionate to the gravity of his misconduct.  In handing down its decision, the FWC noted, “it is well established that in some circumstances an employee may be validly dismissed because of out of hours conduct”.

The FWC held that employees have an obligation to perform their duties in accordance with their employment agreement and fundamental to these obligations is to be ready, willing and able to perform their duties at the relevant time. The failure of the employee to report to work because of his voluntary consumption of alcohol therefore constitutes a valid reason for his dismissal.

The FWC dismissed the employee’s application for an unfair dismissal remedy.

Lessons for Employers

This decision confirms the right of employers to dismiss workers in circumstances where their out-of-hours conduct impairs the safe performance of their duties, particularly where an employee has a safety critical role.  Importantly, in order for the dismissal to be valid there needs to be a sufficient connection between the out-of-hours conduct and the employment relationship.

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