Unfair dismissal: sacking of employee who warned employer she had “overindulged” deemed to be harsh
A recent unfair dismissal case concerned a woman who was employed to scale, slice, weigh and pack fish at a plant in Tasmania and who was sacked after she phoned in sick at the end of Anzac Day, which was also her birthday. (See Avril Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd, U2017/5420.)
Employee applies to Fair Work Commission for unfair dismissal remedy
The phone message the employee had left for her employer was simple: “Hi Michelle, it’s Avril, one of your most loved pains in the arse,” she said. “Um it’s Anzac Day, my birthday, and I admit I have overindulged so I’m taking into account one of the golden rules, be fit for work, and I’m not going to be fit for work so I won’t be there. But um love ya, catch ya on the flip side.”
Employee stood down without pay
However, the boss accused her of deliberately consuming alcohol in order to claim she was unfit to carry out her work duties the next day, and stood her down without pay.
“You… deliberately made a decision to consume alcohol to the extent that you would not be fit for work on 26 April 2017 when you were required to attend and be in a fit state to carry out your duties safely,” the manager’s letter said.
Employee claims she acted responsibly and respectfully
In her response, the employee said she did not “deliberately” make the decision to consume alcohol to the point where she would be unfit to attend work the next day.
“It was my BIRTHDAY, and friends dropped by unannounced,” she wrote in an email to her employers. “I had my official birthday party on the Monday night and wasn’t expecting visitors on Tuesday, however, visitors I got.
“As the afternoon went on I realised it was going to be a long night and I believe I acted responsibly and respectfully by contacting management to let them know I wouldn’t be fit for work.
“Would it have been wiser for [me] to call at 6am on the 26th and plead illness? I think if I had done that then I wouldn’t be writing this letter now, but it wouldn’t have been the honest thing to do in my opinion.
“It was not my intention to deliberately take the day off, the events were not planned and not expected, and again, I feel that contacting management on the 25th was the right and responsible thing to do.”
The manager replied that she had chosen to continue drinking, rather than make sure she would be fit for work the next day. The company said it was the second time she had done this, so dismissal was fair.
Fair Work Commission orders employer to pay compensation to employee
The Fair Work Commission concluded there was a valid reason for dismissal, as the employee had effectively taken a “sickie” without being ill. But it found the dismissal was “harsh”, and ordered the company to pay her $8229 in compensation, as she was not going to be reinstated.
The crucial detail behind the decision was that her previous “sickie” was when she told the company she had been drinking as she was upset that she had just found out her brother had advanced lung cancer.
Her colourful message read: ‘Hello, it’s Avril. Um… I won’t be at work today. I am non compos mentis, which means I’m f@#$%&! sh@#faced. I just found out my brother’s got advanced lung cancer and I’m a bit upset about it all yeah. Sorry.”
This was critical for the FWC. It said it was harsh for the company to cite that first sickie in their reasons to fire her over the second sickie. A lesser punishment would have been in order.
Employers and employees should be aware of legal options
I come across cases like this all the time, where something can be salvaged from an otherwise harsh decision. However, too often employees aren’t aware of their rights and the avenues they can pursue through the legal system for restitution.
Similarly, employers can avoid a lot of cost, time and bad feeling if they get expert legal advice before they act against an employee.