Legal

Boozing insurance broker who passed out in hotel corridor wins $300,000 in unfair dismissal case

Cara Waters /

Insurance broker Donald Mitchell-Innes has been awarded $300,000 after the NSW District Court found he was wrongfully dismissed by his employer for drunken behaviour at a work conference.

Mitchell-Innes had worked for risk and insurance company Willis for seven years and the court found alcohol consumption, in a work context, was not uncommon amongst employees there.

Read more: 10 unfair dismissal cases examined – key lessons for SMEs

Employees were expected to socialise and consume alcohol with clients and prospective clients and Willis routinely reimbursed alcohol expenses resulting from employee gatherings or entertaining clients.

Mitchell-Innes was sacked after attending a staff dinner in October 2012 whilst in Melbourne for a Willis training conference.

Most of those who attended the dinner visited the Irish Times pub for some time after the dinner and Mitchell-Innes and one or two other staff stayed at the pub until the early hours of the next morning.

Eventually Mitchell-Innes and another staff member left the pub to return to their hotel. Mitchell-Innes could not find his room key and after sitting down on a bench near the lifts in his hotel fell asleep until 7am.

Mitchell-Innes still managed to make it to the conference that day, attending as an observer from 9am but some senior staff noted he “was not at his best”.

After an investigation in the proceeding weeks Mitchell-Innes was sacked as a result of his condition at the conference. 

But the NSW District Court found there was a manifestation of low-level intoxication, without other consequences of behaviour of significance in the workplace, and so dismissal was a harsh reaction.

“In my view, this behaviour, [Mitchell-Innes’] condition at the conference, does not constitute a repudiation of the agreement, or other sufficiently serious misconduct enlivening a power of summary termination,” Justice Taylor found.

“It was not serious misconduct in serious circumstances.”

The court took into account that Mitchell-Innes had not previously been disciplined for attending work intoxicated and his behavior at the conference was properly to be regarded as a solitary, one-off event in a period of almost nine years employment.

Justice Taylor awarded damages of $296,650: $99,092 in lost salary, $118,182 for his lost retention bonus, $48,620 in long service leave and $30,755 in interest.

TressCox partner Rachel Drew told SmartCompany intoxication in the workplace can be a valid reason for dismissal.

But Drew says employers need to ensure if they are concerned about the workers drinking they have a policy in place that makes it clear it is unacceptable and connect intoxication with performance of work.

“In some areas such as construction it is very easy to show that any level of intoxication in the workplace could give rise to very serious risk to the employer,” Drew says.

However, in this case Mitchell-Innes’ behaviour was at an internal conference and so did not pose a serious risk.

“His behaviour is below the standard expected by the employer and the employer is entitled to investigate and impose some form of penalty but dismissal seems to be a step too far,” she says.

Drew says if employers have a policy on alcohol consumption it is important for them to comply with that policy as well. 

“If the employer is going to conduct a training conference that includes alcohol at dinner and paying for alcohol at a venue afterwards the employer needs to accept some degree of responsibility,” Drew says.  

A spokesperson for Willis told SmartCompany the business is “very disappointed” in the decision and has lodged an appeal.

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Cara Waters

Cara Waters is the former editor of SmartCompany. Previously, Cara was a senior reporter at the Financial Times website FT Adviser in London and she also worked for The Sunday Times in London.

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