In a recent ERA decision, an employee claimed to have been unjustifiably dismissed.  In brief: he had had a few beers the night before; an hour before work he realised he was too drunk to work; he text his employer advising he was “2 crook to mke it in”; then, having not heard anything from his employer, turned up for work the following day.

A month or so earlier, a full staff meeting had been called to explain that policies around absenteeism were to be enforced more rigorously and that non-adherence may result in disciplinary action.

When he arrived at work, the employee was barreled up into a room to explain why he had not been at work.  Shortly after, a meeting was called and held.  The employee was repeatedly advised that “the matter was serious” and offered representation – which he refused.  There was a brief discussion between the parties before an adjournment, following which the employee was advised that he was to be dismissed with immediate effect.

The ERA criticised the process followed by the employer and, despite deciding that the employee was 100% responsible for the situation, ordered the employer to reimburse the employee for 13 weeks’ lost wages of $8,528.00.

Following any disciplinary process, the law contemplates that the employer may reach one of many outcomes – however the outcome that is decided on must be fair, reasonable, and (most importantly) justifiable.  In this case, the ERA focused on the following particular matters in finding that the outcome in this case was not justifiable:

  1. There was not enough time between the notice of the meeting and the holding of it.
  2. The employer took into account an incident which had taken place some significant time earlier.
  3. The employer did not take into account the employee’s clear disciplinary record over his previous four years of service.
  4. The employer did not take into account the employee’s responsible behaviour – i.e. reporting for work in an intoxicated state would have constituted a health and safety risk for the employer’s workplace.

Sometimes cut-and-dry cases of misconduct can cause the biggest headaches – but usually only where a careful process is not followed.  We recommend that you seek advice specific to your circumstances wherever there is a question about an employee’s conduct.