Not happy about your employee’s conduct and considering dismissal? First, take some time to reflect on your obligations and your employee’s history of employment.

As widely reported, on 7 September 2017 the FWC ordered Tassal Group Limited T/A Tassal Operations Pty Ltd to pay compensation to Ms Chapman in the sum of $8229.00.

That Voice Mail Message

Ms Chapman was employed by Tassal as a level 1 processing employee. Her duties included scaling, slicing, weighing and packing fish.

On 25 April 2017, Ms Chapman called a supervisor at Tassal and left the following voice mail message:

“Hi Michelle, its Avril one of your most loved pains in the arse. Um its ANZAC day, my birthday, and I admit I have over indulged 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”

Tassal’s Response

Tassal alleged that the conduct amounted to a breach of its Code of Conduct and to an unacceptable risk to Tassal and its employees.

A letter was given to Ms Chapman when she arrived for work on 27 April. The letter contained the allegation of misconduct and advised that she was to be stood down with pay and was required to respond to the allegations by noon on 28 April 2017.

“You had 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.”

Ms Chapman’s Reply

Ms Chapman responded by email on 27 April at 7:06 am:

“This is my response to the allegation against me.

Firstly, I did not deliberately make the decision to consume alcohol to the point were (sic) I would be unfit to attend work the following day.

It was by BIRTHDAY, and friends dropped by unannounced. 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 mw to call at 6 am 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.”

On 27 April 2017 at 3.47 pm. Ms Chapman sent a further email:

“Dear Duane, I have waited all day for a return phone call from Seonna in regards to whether I am required to attend a meeting tomorrow to discuss the allegations directed towards me. The letter stated that I must respond in writing by 12.00 noon Friday 28 April 2017, and I have done that via email to you, however the letter did not state if I was required to be in attendance on the Friday. I rang Seonna and she assured me she would call me back with the relevant information I needed. She hasn’t done that.

I would also like to add that I feel managments (sic) constant quest in turning ‘MOLEHILLS INTO MOUNTAINS’ is detrimental to our company’s integrity and our code of conduct. The “GO IN FOR THE KILL” mentality is rather disturbing and completely against Tassal’s moral code in my opinion. Management is also responsible for their staff’s wellbeing, although it seems staff are ignored in favour of impressing higher management. I did nothing untoward to deserve that letter, and the fact that I drove all the way from Waterloo, only to be handed a letter and told to leave was totally unprofessional and unforgivable on managements (sic) part.

I would be more than pleased to discuss this matter further with Mark Ryan if given the opportunity. I respect you, and I await your personal response.”

Following further correspondence, Tassal made the decision to terminate the employment of Ms Chapman.

Finding

FWC Deputy President David Barclay found that there was a valid reason for the termination and that Ms Chapman had chosen to over indulge in alcohol on the day before she was due to work to such an extent as to be unable to fulfil her obligations to attend work the next day.

However, the FWC Deputy President David Barclay also found that the termination was harsh.

Tassal relied on a previous incident- a further alleged breach of the Code of Conduct as satisfying the requirement for a warning about the unsatisfactory performance. FWC Deputy President David Barclay disagreed, the previous warning was not for the same conduct and therefore Ms Chapman should have been given a warning:

In this case we have a misguided approach to the employer to the effect that the Applicant has overindulged (in alcohol) to such an extent as to result in her being incapacitated for work in circumstances (unlike the previous instance) where there was no extenuating circumstance which might constitute a justification for that conduct. That constitutes the valid reason. However because this is the first time the Applicant has conducted herself in that manner in 5 years of working for the Respondent to terminate her employment was harsh. I agree with the Applicant that another sanction such as performance management or a further, perhaps even final, warning was appropriate.

Lesson for Employers

Employers proposing to terminate employment for unsatisfactory conduct need to carefully consider the history of an employee’s conduct and the appropriateness of a warning vs dismissal.

If you have any questions on the above, please contact us.

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