DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Trudi Puszka
v
Ryan Wilks Pty Ltd T/A Ryan Wilks Proprietary Limited
(U2018/8666)

Unfair dismissal - summary dismissal - misconduct involving drunkenness at after work function - significant factual errors with aspects of reasons for dismissal - no valid reason for dismissal - nature of misconduct not basis for summary dismissal - dismissal harsh, unjust and unreasonable - reinstatement appropriate remedy.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 20 August 2018, and it was made by Trudi Puszka (the applicant). The respondent employer is Ryan Wilks Pty Ltd T/A Ryan Wilks Proprietary Limited (ABN: 82 056 662 938), (the employer, or RW, or Ryan Wilks).

[2] The application indicated that the date that the applicant’s dismissal took effect was 2 August 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 3 December 2018. At the conclusion of proceedings held on 3 December 2018, only the evidence in the matter had been completed, and a timetable was established for the provision of further written submissions which concluded with the final submissions of the applicant being provided on 29 January 2019.

[4] At the Hearing the applicant represented herself, and the employer was represented by Mr G Jervis from The National Electrical Contractors Association (NECA), who appeared with Mr J Miljak. As the dismissal of the applicant was made upon findings of serious misconduct, for which the applicant was dismissed without notice, the Parties agreed that the employer would present its evidentiary case before that of the applicant. Mr Jervis called two witnesses who provided evidence on behalf of the employer. The applicant introduced evidence from one other witness and the applicant herself gave evidence as the second witness who provided evidence in support of the unfair dismissal claim.

Background

[5] The applicant had worked for the employer for about one year. The applicant was employed as a Project Administrator and she performed administrative duties covered by the Clerks Private Sector Award 2010.

[6] The employer operates a business as a commercial and industrial electrical contractor specialising in the installation and maintenance of electrical systems and networks. The employer’s major client is the Sydney Opera House (SOH). The applicant’s work as a Project Administrator was undertaken on site at the SOH, and she performed a broad range of administrative tasks associated with the employer’s contractual arrangements with the SOH.

[7] The applicant had a commendable work history and there were no performance or conduct issues that arose in respect of her employment prior to events that occurred on the evening of Friday, 20 July 2018.

[8] On Friday, 20 July 2018, the applicant attended a farewell drinks function that had been arranged for an employee who was leaving the SOH. The farewell function occurred after work hours, and attendees purchased their own alcoholic drinks. The farewell function was held in the public bar areas of the SOH site. The applicant initially attended the farewell function in the SOH opera bar, and after some time the function moved to the Portside SOH bar.

[9] The applicant consumed a considerable number of alcoholic drinks and she became intoxicated. There was considerable contest in respect of the detail of particular conduct of the applicant during her period of drunkenness. The applicant admitted that she had become drunk and that she had vomited onto the floor of the bar area. She said that she only vomited what she described as a small amount of regurgitated wine. The applicant’s friends assisted her, and cleaning staff attended to the removal of the vomit. Further, the applicant admitted that following her vomit she was initially very unwell, and had been assisted out of the bar by her friends who eventually ensured that she made it into a taxi. The applicant rejected that during her period of drunkenness she had made insulting and disparaging statements about SOH employees and/or Ryan Wilks employees. Further, the applicant strongly rejected that during the period of her drunkenness she had made propositions of a sexual nature to a SOH employee.

[10] The applicant was the only Ryan Wilks employee at the drinks function at the time of her drunkenness and vomiting. Consequently, the employer was initially unaware of the incident involving the applicant’s drunkenness and associated conduct at the after work farewell drinks function on 20 July. However, on the following Wednesday, 25 July 2018, the SOH Contracts Manager informed the Ryan Wilks Project Manager at the SOH (the applicant’s immediate superior) of the applicant’s drunkenness and vomiting of the previous Friday evening. Subsequently, the Ryan Wilks Project Manager passed on the information about the incident involving the applicant on 20 July to the employer’s NSW Construction Manager, Mr Crome.

[11] Mr Crome commenced an investigation into the incident involving the applicant’s conduct on the evening of 20 July 2018. On Tuesday, 31 July 2018, Mr Crome sent a letter by email to the applicant which was headed “Re: Misconduct”. This letter included advice that the employer had been made aware of the incident of the evening of 20 July which was said to have involved the applicant’s misconduct including; that she was overheard insulting a Ryan Wilks employee and SOH employees; that she had made propositions of a sexual nature to a SOH employee; that she had vomited on the forecourt area; and that she was escorted by event members to a taxi because of her intoxication. The applicant was sent an electronic meeting request to discuss the matters included in the “Re: Misconduct” letter on the next day Wednesday, 1 August 2018.

[12] The “Re: Misconduct” letter also indicated that the applicant “… may deem it appropriate to have a witness or other representative present” at the meeting scheduled for the following day. The applicant initially sent an electronic invite to two SOH employees to attend the scheduled meeting as these individuals were her friends that were present at the time of the incident on 20 July. Mr Crome noticed the electronic invite for the two SOH employees, and he subsequently sent an email to the applicant indicating that she may wish to reconsider having any SOH employees as support persons at the meeting as there was some concern about involvement of employees of the employer’s client. Consequently, the applicant uninvited the SOH employees, and she attended the meeting with the employer on Wednesday, 1 August 2018, without any support person.

[13] On 1 August 2018, the applicant attended a meeting with Mr Crome and two other Ryan Wilks managers. Although the applicant did not have a support person in attendance she indicated her preparedness to proceed with the meeting, and she was invited to respond to the contents of the “Re: Misconduct” letter. The applicant read from a prepared statement whereby she admitted to being intoxicated, vomiting, and being escorted out of the building. The applicant firmly denied sexually propositioning a SOH staff member and making insulting or disparaging remarks about any other persons. The applicant apologised for her drunkenness and vomiting and she also requested more details of the allegations that had been mentioned in the “Re: Misconduct” letter. The meeting concluded with Mr Crome advising the applicant that a further meeting would be arranged in due course.

[14] After the meeting had finished, Mr Crome spoke with two SOH managers who attended the 20 July farewell drinks event, and these two individuals subsequently gave Mr Crome anonymous written reports about the applicant’s conduct on the evening of 20 July. On the afternoon of 1 August 2018, Mr Crome approached the applicant and told her that a further meeting was arranged for the following day at 8 am at the employer’s Silverwater Head Office.

[15] On 2 August 2018, the applicant attended a meeting at the employer’s Silverwater Head Office with Mr Crome and another manager. At the commencement of this meeting the applicant was asked if she had anything further to add in respect to the events of the evening of 20 July, and the contents of the “Re: Misconduct” letter. The applicant indicated that she wanted to know the identity of the complainants and that she had witnesses that would support her version of events.

[16] Mr Crome rejected the applicant’s proposition, and he advised the applicant that the employer had deemed her conduct on the evening of 20 July to represent serious misconduct and her employment was being terminated accordingly. Mr Crome provided the applicant with a pre-prepared termination of employment letter which, inter alia, advised that the employer had deemed the applicant’s conduct to represent serious misconduct and therefore “no time in lieu will be paid” and the applicant’s employment finished immediately.

[17] Since the termination of employment the applicant has sought alternative employment, and she obtained some undeclared income from temporary work that began on 5 November 2018. The applicant did not initially seek reinstatement as a remedy for her alleged unfair dismissal. Further, she provided evidence that she has an unemployment insurance policy that would provide her with payments in respect of lost remuneration in the event that her dismissal was found to have been unfair. However, these payments are apparently limited to a fixed maximum of $9,000. The applicant said that her primary goal was to have her name cleared in respect to what she described as heinous allegations.

The Case for the Applicant

[18] The applicant provided extensive written submissions which advanced the assertion that her dismissal was unfair. The applicant also included submission material in a variety of other documents that she relied upon as evidence in support of unfair dismissal claim. In addition, during the Hearing, the applicant made some verbal submissions which outlined the basis of her claim.

[19] The applicant submitted that the employer did not have a valid reason to terminate her services. The applicant submitted that she had performed her duties diligently and that the employer had acted irrationally. The applicant acknowledged that she had become intoxicated during the after work drinks function held on 20 July 2018, and that her level of intoxication contributed to her vomiting, and requiring assistance when leaving the SOH bar premises. However, the applicant strongly rejected the allegations that; (a) she had used insulting or derogatory language in respect to Ryan Wilks employees or employees of the SOH, and (b), that she had made propositions of a sexual nature to a SOH employee, Mr Baxter.

[20] The applicant further submitted that she had not been told the extent of the allegations made against her or by whom the allegations had been made. Consequently, the applicant submitted that the process was procedurally unfair as she had not been provided with full details of the conduct that was alleged against her. According to the submissions made by the applicant, the absence of specifics of the allegations meant that she could not properly defend herself prior to the employer deciding to dismiss her from employment.

[21] The submissions made by the applicant made severe criticism of the process that the employer adopted in its investigation of the farewell drinks incident that happened on 20 July 2018. The applicant submitted that at no time was she stood down during the investigation process, and the first that she knew of the allegations was on 31 July when she received the “Re: Misconduct” letter. The applicant submitted that the requirement for her to attend a disciplinary meeting on the next day, 1 August, without specifics of the allegations denied her procedural fairness.

[22] In further submissions, the applicant stated that the employer had not conducted a proper or balanced investigation, and it did not review the CCTV footage from the evening of 20 July prior to her dismissal. Further, the applicant submitted that the employer deliberately did not speak to any of the witnesses that she sought to have present evidence of what actually occurred at the farewell function on 20 July. In particular, the applicant submitted that the employer had ignored the fact that the person that she allegedly sexually propositioned had stated that this had not occurred.

[23] The applicant also made submissions which criticised the employer for relying upon hearsay that had been provided as malicious gossip from two people identified only as Anonymous Manager 1 and Anonymous Manager 2. The applicant was insistent that she had not sexually propositioned Mr Baxter at all, and further that she had not used any derogatory language regarding other employees as had been alleged.

[24] The applicant also made submissions which asserted that she had been unfairly treated because she had been treated differently from other employees who had breached the SOH and RW Codes of Conduct. The applicant submitted that there was evidence of other employees who were present at the farewell drinks function, who had indeed acted in a very sexually provocative manner, and that on other occasions, other RW employees had been excessively drunk and conducted themselves in a manner that was worse than the conduct for which she was dismissed.

[25] In summary, the submissions made by the applicant asserted that her dismissal was unfair as she had worked for the employer for one year and had always completed her duties diligently. The applicant submitted that the employer’s decision to dismiss her was based on a process that was procedurally unfair, and led to findings that were wrong about her conduct during the farewell drinks function on 20 July 2018.

[26] The applicant made further submissions on the issue of appropriate remedy. In this regard, the applicant stated that she had been actively looking for work but remained unemployed. The applicant stated that she sought reinstatement to work at the SOH as she enjoyed that work and that other than “this minor blip” her conduct and work record had always been unblemished.

The Case for the Employer

[27] The employer was represented by Mr Jervis from NECA, who referred to a written outline of submissions provided on 16 November 2018. Subsequently, further written submissions on behalf of the employer were provided on 16 January 2019. The written submissions made on behalf of the employer were broadly constructed by reference to the various factors contained in s. 387 of the Act.

[28] The employer submitted that the applicant was dismissed for valid reason. The valid reason for dismissal of the applicant arose from events that occurred in public areas of the SOH on the evening of 20 July 2018. It was submitted that each of the reasons relied upon by the employer constituted a valid reason because each reason was sound, defensible and well-founded.

[29] The submissions made on behalf of the employer stated that the valid reason for the dismissal of the applicant involved her misconduct in the form of being intoxicated at a function that was attended by senior SOH management, other contractors, and members of the public. It was asserted that the intoxicated conduct of the applicant caused a serious and imminent risk to the reputation and viability or profitability of the employer’s business.

[30] According to the submissions made by the employer, the applicant was intoxicated at a function which was although not actually at work, it was closely associated with her work and in the vicinity of a workplace. The submissions made by the employer noted that the applicant had not denied two of the allegations in respect of her behaviour, namely, that she was so intoxicated that she vomited, and that she required assistance to leave the venue. Further, the employer submitted that although the applicant denied that she had made at least sexually charged if not sexually harassing comments to a SOH project manager, Mr Baxter, the applicant’s denial should be rejected. Similarly, the employer submitted that the applicant’s denial that she had made disparaging remarks that insulted a Ryan Wilks employee and SOH employees should not be believed.

[31] The submissions made by the employer asserted that the conduct of the applicant, when viewed objectively, was likely to cause serious damage to the relationship between the employer and employee, and also it was conduct that damaged the employer’s interests and it was incompatible with the employee’s duty as an employee. Further, it was submitted that even if the Commission was to accept the applicant’s version of the incident of 20 July, the comment that she said she made to Mr Baxter which was; “Don’t let anyone take advantage of me” should be regarded as sexual harassment.

[32] The further submissions of the employer referred to policies and codes of conduct that the applicant was obliged to observe in respect of her work at the SOH. In this regard, it was submitted that the applicant was well aware of the obligation under both Ryan Wilks and SOH policies to conduct herself appropriately when in the vicinity of the SOH and in particular, in public areas of the SOH. The employer submitted that it was clear that the behaviour of the applicant was in breach of the relevant policies and codes of conduct that applied to her.

[33] The employer also made submissions which rejected the proposition advanced by the applicant that the true motivation for a dismissal involved the employer’s desire to remove her because she had been regarded as a whistle blower. The employer submitted that there was no basis upon which the employer could have considered the applicant to have been a whistle blower as in fact, it did recognise and commend her work in identifying aspects of an asset register that were incorrect.

[34] The employer made further submissions which urged that the Commission adopt a preference for the evidence of the employer where ever that differed from the evidence provided by the applicant and her witness Ms Gill. In this regard, the employer referred to the CCTV footage that had been obtained and which clearly demonstrated that the applicant was at various times, passed out on her chair, required assistance to go to the toilet, stumbled over a table, and then bent over and vomited while her hair was held back. The employer stressed that although these aspects of her conduct were undeniable, she had not included screenshots of these particular parts of the CCTV footage.

[35] The employer also submitted that the criticisms that the applicant made of the procedure that the employer had adopted should be rejected. The employer submitted that the applicant knew the details of the allegations that had been made against her and that she had been provided with ample opportunity to respond. Further, the employer submitted that the employer did not unreasonably refuse to allow the applicant to have a support person present.

[36] Alternative submissions were also made on behalf of the employer which dealt with the prospect of any contemplation of remedy. The employer submitted that reinstatement or reemployment of the applicant would be inappropriate. The employer said there was evidence that there had been an irreparable breakdown in the trust and confidence each party was required to have in the other, in particular, the employer submitted that the applicant had accused Mr Crome of lying. The employer also submitted that there was no basis upon which the Commission could provide an alternative remedy of compensation because the applicant had an insurance policy that would provide her with any lost remuneration in the event that the dismissal was found to have been unfair. Additionally, the employer noted that the applicant had failed to provide documentation which confirmed her attempts to find alternative employment and any remuneration received in other employment.

[37] In summary, the employer asserted that the dismissal of the applicant was not harsh, unjust or unreasonable. The employer submitted that the applicant was afforded procedural fairness. Further, the employer said that there was valid reason for dismissal relating to her conduct, and she had been notified of the reasons for dismissal. In addition, the employer said that it had provided the applicant with an opportunity to respond. The submissions of the employer stated that termination was for reason of extreme gross misconduct. Therefore, the summary dismissal of the applicant was justified. Consequently, the employer submitted that the applicant’s unfair dismissal claim should be dismissed.

Consideration

[38] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[39] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.

[40] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

387 (a) - Valid reason for the dismissal related to capacity or conduct

Summary Dismissal

[41] This was a case of summary dismissal. Summary dismissal is the most severe form of termination of employment. By its nature, summary dismissal indicates and records some very serious wrongdoing. Summary dismissal is implemented without any notice or payment in lieu of a period of notice. A summary dismissal may also remove entitlements to certain service related payments such as accrued long service leave. (In this instance, the applicant was paid her accumulated leave entitlements.) Summary dismissal should be clearly distinguished from a dismissal with notice or payment for the notice period.

[42] Any employer should be very cautious about invoking a summary dismissal, as opposed to dismissal with the required notice. In this regard, it is relevant to repeat an extract from the Judgement of Mr Justice Hungerford in the case of Pastrycooks Employees, Biscuit Makers Employee & Flour and Sugar Goods Workers Union (NSW) v. Gartrell White (No 3), (Gartrell White)  1:

“The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it.”  2

[43] The following further extract from the same Judgement is relevant:

"...the test comes down to the question whether the employee's conduct has been so inconsistent with his duties under the employment contract that it strikes down any reasonable suggestion that the employer-employee relationship can be continued in the future."  3

[44] Much of the recent case law on the question of what particular conduct may justify summary dismissal has developed from a line of authority which, for present purposes, can be conveniently traced back to the case of Laws v. London Chronicle (Indicator Newspapers) Limited. 4 Although this was an English case from 1959, it established the concept that any conduct which is relied upon to provide basis for summary dismissal must "... have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions." 5

[45] The reason for the summary dismissal of the applicant was solely related to her conduct during the after work hours farewell function on 20 July 2018. There were four identified aspects of the applicant’s conduct which the employer found to represent serious misconduct upon which the summary dismissal of the applicant was implemented.

[46] The applicant admitted to two aspects of the conduct alleged against her, namely, that she was intoxicated to a point that she vomited, and that she required assistance to leave the venue. However, the applicant strongly rejected the other two aspects of misconduct that the employer relied upon as basis for her summary dismissal, namely that she used insulting or disparaging remarks about other employees, and that she made propositions of a sexual nature to a SOH employee.

Disparaging Remarks

[47] The evidence of the first mention of the allegation regarding the applicant making disparaging remarks occurred when the SOH Contracts Manager, Mr Dick, spoke with the Ryan Wilks Project Manager, Mr Spiers, on 25 July 2018. In his witness statement, Mr Spiers provided a recollection of the conversation that he said he had with Mr Dick on 25 July 2018. 6 Strangely, this recollection contains many passages with identical wording to that contained in a redacted email attached to the witness statement of Mr Crome7. At paragraph 33 of Mr Crome’s witness statement, he stated that he received the email marked as OC5, on 26 July 2018. However the redacted email, OC5, is dated 6 September 2018.

[48] Consequently, there appears to have been some attempt to reconstruct the detail of the conversation that was said to have occurred between Mr Dick and Mr Spiers on 25 July 2018. In the absence of any evidence from Mr Dick, the evidence provided by the purported recollection contained in Mr Spiers’s witness statement, and the redacted email of 6 September 2018, must be treated with significant caution. Essentially, the second or third hand information provided to firstly Mr Spiers, and then conveyed to Mr Crome, involved people who wished to remain anonymous, asserting that the applicant had made disparaging remarks by “talking about Ryan Wilks and the companies people in a bad way.”

[49] Mr Crome provided further evidence that he subsequently spoke with the anonymous Manager 1 and Manager 2 who had witnessed the applicant’s conduct at the farewell function on 20 July. According to the evidence of Mr Crome, when he asked Manager 1 “…was she disrespectful to anyone else?” the response was; “Well I’m not sure, a few other people said that she said a few things.” 8 According to Mr Crome, Manager 2 was more effusive about the applicant’s disparaging remarks, and was recorded to have said; “At one point we also heard her talk about Ben by saying “he bats for the other side you know”. She also had a bit a [sic] dig at Ray saying he’s “no good””9

[50] Mr Crome provided further evidence that he asked both Manager 1 and Manager 2 to each provide a written record of their respective recollections of the applicant’s conduct during the farewell drinks function on 20 July. Both Manager 1 and Manager 2 obliged Mr Crome, and their respective, typed, anonymous, documents were provided as attachments to his witness statement and marked as OC8 and OC9 respectively. Significantly, there is no mention whatsoever in either OC8 or OC9 of the applicant making any disparaging remarks about either the Ryan Wilks Company or any other employees of Ryan Wilks or the SOH.

[51] In contrast with the curious evidence that the employer sought to rely upon as basis for finding that the applicant had made disparaging remarks during the farewell drinks function on 20 July, the evidence provided by the applicant’s friend, Ms Gill, was that she did not witness or overhear the applicant make any derogatory remarks. Although the evidence provided by Ms Gill must be considered in the context of her friendship with the applicant, she nevertheless presented as a very believable witness other than in respect to her estimation of the distance that she and the applicant travelled in the courtesy buggy before catching a taxi after the function on 20 July. Importantly, Ms Gill attended the farewell drinks function but she drank only water as she does not drink alcohol. Consequently, 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.

[52] Upon careful consideration of the contested evidence about the applicant making disparaging remarks during the farewell drinks function on 20 July 2018, on balance, the evidence provided by Ms Gill and the applicant must be preferred over the evidence introduced on behalf of the employer. Although she is a friend of the applicant, and she has some difficulty estimating distances, the direct witness evidence provided by Ms Gill who was a sober participant in the relevant events, must be preferred over the strangely inconsistent evidence of the employer which included that provided anonymously by the mysterious Manager 1 and Manager 2.

Sexual Propositioning/Harassment of Mr Baxter

[53] The employer’s most serious finding of misconduct of the applicant involved her making propositions of a sexual nature to an SOH employee who has been identified to be Mr Cohen Baxter. The primary evidence upon which the employer established what it regarded as sexual harassment was provided by the anonymous statements of Manager 1 and Manager 2, which were respectively identified as OC8 and OC9.

[54] According to the anonymous statement of Manager 1, the applicant said; “Cohen you can take advantage of me if you like.” 10 The anonymous statement of Manager 2 recorded that the applicant said; “that’s okay, Cohen you can take advantage of me”.11 Conversely, the evidence of Ms Gill was that she did not hear the applicant make any remarks of a sexual nature, and the applicant said that what she said to Mr Baxter was; “don’t let anyone take advantage of me.”12

[55] The contest as to precisely what the applicant said to Mr Baxter amounted to, on the one hand, the words; “Cohen you can take advantage of me” as opposed to; “don’t let anyone take advantage of me.” The employer submitted that even if the applicant’s version was correct, and she had stated; “Don’t let anyone take advantage of me” that comment should be regarded as sexual harassment. In support of this submission, the employer referred to the Australian Human Rights Commission definition of sexual harassment as: “an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances” and includes as an example of sexual harassment,” “suggestive comments or jokes.”

[56] Although I find it difficult to accept that one comment such as “you can take advantage of me” which may have been construed to represent an invitation for sex, would represent sexual harassment, the evidence in this instance has clearly established that the comments made by the applicant to Mr Baxter were not an invitation for sex, but a request for assistance in the form of the words; “Don’t let anyone take advantage of me.”

[57] Although Mr Baxter did not provide evidence as a witness in these proceedings, a document was produced under subpoena which recorded what he apparently told an SOH Manager (presumably not Manager 1 or Manager 2), about the alleged sexual propositioning by the applicant. An email dated 1 August 2018, included the following text:

“I have since spoken to Cohen who has stated that he was not propositioned at all. He said that even if she had propositioned him, particularly given she was drunk, he would likely not been offended. (I have relayed this to Oliver)” 13

[58] The “Oliver” referred to in this email is Mr Crome, and he confirmed during cross-examination that he knew that Mr Baxter did not feel as though he had been sexually propositioned. 14 Consequently, although Mr Crome knew that Mr Baxter had stated that he had not been propositioned by the applicant, the employer confirmed and relied upon this false allegation as the gravest aspect of the serious misconduct for which the applicant was summarily dismissed.

[59] Consequently, those aspects of the reason for dismissal which involved the applicant (a), allegedly disparaging the employer or other employees of the employer or the SOH, and (b), allegedly making propositions of a sexual nature to a SOH employee, namely Mr Baxter, have no basis in fact. Astonishingly, in respect to the allegation regarding any sexual propositioning of Mr Baxter, the employer knew that allegation to be false and yet it relied upon it as reason for dismissal.

Drunk at an After Work Function

[60] In the absence of any factual basis for the reasons for dismissal that related to the applicant making disparaging remarks and/or sexually propositioning a SOH employee, the extent of the applicant’s misconduct was confined to her drunkenness and associated vomiting at the after work hours farewell drinks function. At no time did the applicant deny or endeavour to downplay her drunkenness at the farewell drinks function on 20 July 2018. The statement that the applicant read to the employer at the disciplinary meeting on 1 August included the following;

“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.”

and

“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.” 15

[61] The conduct of employees outside of work hours has increasingly become the subject of potential scrutiny by employers. In this instance the applicant accepted that her conduct at the farewell drinks function had the potential to reflect upon the business of the employer, and she was genuinely remorseful and embarrassed by her misconduct during her period of drunkenness. The employer was understandably concerned that the misconduct of the applicant at the farewell drinks function might have some impact upon the renewal of its contract with its major client, the SOH. Consequently, in this instance, there would seem to be sound basis for the employer to have implemented some form of disciplinary action in respect to the misconduct of the applicant associated with her drunkenness.

[62] However, on any reasonable and objective contemplation, a single act of drunkenness at an after work function which did not involve any abusive or aggressive behaviour, and for which no serious risk to the reputation or viability of the employer’s business could be established, would not represent misconduct that provided a sound, defensible and well-founded reason for dismissal. 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.

[63] Further, in this case, it was surprising to find that the employer decided to invoke a summary dismissal, as opposed to dismissal with notice. On 25 July 2018, the employer became aware of the nature and severity of the allegations of misconduct surrounding the applicant’s drunkenness at the 20 July farewell drinks function. However, at no time was the applicant suspended from duty, and she performed further work without any restriction up until her summary dismissal on 2 August 2018. In such circumstances, the absence of any immediate suspension or restriction upon the work of the applicant, has meant that the employer could not subsequently invoke a summary dismissal as opposed to dismissal with notice. 16

[64] In this instance, the misconduct of the applicant which involved her drunkenness during the 20 July farewell drinks function did not possess any characteristic of wilful attack against the employment relationship. The employer attempted to elevate the severity of the applicant’s misconduct by erroneously finding that her drunkenness also involved her denigrating others and sexually propositioning a work colleague. The artificiality of the additional findings of misconduct made by the employer was revealed by evidence that the employer knew that the person who was alleged to have been sexually propositioned denied that such conduct had occurred. Upon careful evaluation, the misconduct of the applicant cannot be construed to be of the nature and severity of serious and wilful misconduct that could provide valid reason for dismissal with notice, let alone summary dismissal.

387 (b) - Notification of reason for dismissal

[65] The employer provided written notification of the reasons for the applicant's dismissal. The written notification was firstly provided by way of the “Re: Misconduct” letter dated 31 July 2018, and subsequently reiterated in the termination of employment letter dated 2 August 2018.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[66] The employer conducted an incomplete and truncated investigation into the circumstances surrounding the applicant’s intoxicated misconduct during the 20 July 2018 farewell drinks function. The applicant was not given sufficient details of the particular misconduct alleged against her so as to allow her proper opportunity to respond. The employer should have heard directly from Mr Baxter and Ms Gill before it accepted the version of events provided anonymously by Manager 1 and Manager 2. Further, the employer should have viewed the CCTV footage from the evening in order to properly evaluate details of the applicant’s conduct during the period of her drunkenness.

387 (d) - Unreasonable refusal to allow a support person to assist

[67] Although it was understandable that the employer did not want to involve employees of its major client, the SOH, in its investigation, it was unreasonable to suggest to the applicant that she should reconsider her choice of support person to assist at the disciplinary meeting on 1 August 2018. The applicant was entitled to be accompanied by the support person of her choice.

387 (e) - Warning about unsatisfactory performance

[68] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead, serious misconduct.

387 (f) - Size of enterprise likely to impact on procedures

[69] The employer is not a large size business operation and appropriate accommodation has been made for a level of informality with respect to procedures that the employer adopted including the investigation into the allegations made against the applicant.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[70] The employer did not have management specialists or other human resource expertise and appropriate accommodation for a level of informality, inaccuracy and imprecision has been provided.

387 (h) - Other relevant matters

[71] The applicant had a relatively short period of employment of about a year which was without any recorded complaint about her performance or conduct. The applicant advanced argument that there was motivation for her dismissal as a result of the employer regarding her as a whistle blower. These are matters which, because of the manifest absence of valid reason for dismissal, have not impacted upon the primary determination of the unfair dismissal claim.

Conclusion

[72] In this case the applicant was summarily dismissed for serious misconduct involving her intoxicated behaviour at an after work hours farewell drinks function. The applicant admitted to certain aspects of misconduct associated with her drunkenness. However, she denied that her drunken behaviour included making disparaging comments and sexually propositioning a work colleague.

[73] The employer conducted an incomplete and truncated investigation into the allegations of misconduct made against the applicant, and it erroneously concluded that the applicant had engaged in all aspects of the alleged misconduct. The nature and severity of the actual misconduct of the applicant could not provide sound, defensible or well-founded reason for dismissal.

[74] Therefore the dismissal of the applicant was without valid reason related to her capacity or conduct. Further, the procedure that the employer adopted when it investigated and determined the allegations made against the applicant denied the applicant procedural fairness and natural justice.

[75] The employer invoked a summary dismissal in circumstances where the employee was permitted to continue to perform work without restriction after the employer became aware of the nature and severity of the allegations of misconduct upon which it subsequently decided to dismiss. In these circumstances, the employer was deprived of the capacity to dismiss without notice.

[76] Therefore, the dismissal of the applicant must be held to have been harsh, unreasonable and unjust. The applicant is entitled to remedy for unfair dismissal.

Remedy

[77] The applicant has sought reinstatement as remedy for her unfair dismissal.

[78] The question of remedy in respect of an unfair dismissal is the subject of Division 4 of Part 3-2 (ss. 390 - 393) of the Act. Section 390 of the Act is relevant to the consideration in this instance and is in the following terms:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[79] I have carefully considered whether it would be appropriate to make Orders for the reinstatement of the applicant. The dismissal of the applicant, and the subsequent evidence that has been presented in these proceedings, has clearly created some tension in the relationship between the applicant and Mr Crome. However, I do not consider that there has been a genuine loss of trust and confidence such that the employment relationship should not be re-established. Further, I have not been persuaded that the difficulties that may exist in the relationship between the applicant and Mr Crome could not be satisfactorily reconciled, and thus the relationship difficulties between the applicant and Mr Crome do not represent a barrier to reinstatement, or would otherwise make reinstatement inappropriate.

[80] In the particular circumstances of this case, after considerable contemplation, I have arrived at the conclusion that a significant injustice would occur if the applicant was not provided with the remedy that she has sought. Erroneous findings of serious misconduct were made against the applicant, particularly including that she had made disparaging and insulting comments, and sexually propositioned a work colleague. The applicant is entitled to a remedy that unequivocally expunges these findings. Therefore, I have concluded that reinstatement would be appropriate in all of the circumstances of this case.

[81] Consequently, for the reasons stated above, I find that the dismissal of the applicant was unfair, and I am prepared to make Orders for the reinstatement of the applicant.

[82] Orders providing for the reinstatement of the applicant will be issued separately. In the event that the Parties are unable to agree on the amount to be paid to the applicant in accordance with Order 3, regarding an Order to restore lost pay, the application will be listed for further proceedings to enable the Commission to determine that amount. Any request for such further proceedings should be made within 21 days from the date of this Decision.

COMMISSIONER

Appearances:

Ms T Puszka appeared unrepresented.

Mr G Jervis, with Mr J Miljak of The National Electrical Contractors Association (NECA) appeared for the employer.

Hearing details:

2018.

Sydney:

December, 3.

Printed by authority of the Commonwealth Government Printer

<PR705158>

 1   Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3), Industrial Commission of NSW, [Hungerford J], 35IR @ page 70.

 2   Ibid @ page 84.

 3   Ibid @ page 74.

 4   1 WLR [1959] @ 698.

 5   Ibid @ 701.

 6   Exhibit 2 - paragraph 5.

 7   Exhibit 1 - “OC5”.

 8   Exhibit 1 - paragraph 59.

 9   Exhibit 1 - paragraph 62.

 10   Exhibit 1 - “OC8”.

 11   Exhibit 1 - “OC9”.

 12   Exhibit 4 - paragraph 7.

 13   Exhibit 5 - Annexure “N”.

 14   Transcript @ PN470.

 15   Application Form F2 - attachment @ paragraph 33.

 16   See for example: McCasker v Darling Downs Co-operative Bacon Association Ltd, Supreme Court of Queensland, [Ryan J], 25IR 107 @ page 114.