A Sydney-based worker fired for alleged drunken misconduct has won a bid for reinstatement after it emerged her employer knowingly relied on false allegations.
The project manager, employed by Sydney Opera House’s electrical contractor Ryan Wilks, was summarily dismissed last year over allegations she disparaged colleagues while drunk and also sexually harassed one man.
After consuming a “considerable number of alcoholic drinks”, the worker became intoxicated, vomited on the floor of an Opera House bar and required assistance to make it into a taxi, the Fair Work Commission (FWC) heard.
Ryan Wilks then summarily dismissed the worker for “extreme gross misconduct”, alleging she sexually harassed one man by telling him “don’t let anyone take advantage of me”.
However, a subpoenaed email produced during the hearing revealed the man had previously told the employer he did not believe he was propositioned, and was not offended by the remarks.
“Astonishingly, in respect to the allegations regarding any sexual propositioning … the employer knew the allegation to be false and yet it relied upon it as a reason for dismissal,” commissioner Ian Cambridge said of the submission.
The employer also submitted the worker made disparaging remarks towards colleagues and other Opera House workers while she was drunk.
But Cambridge said it relied on “curious evidence”, involving a mix of second- and third-hand information sourced from “mysterious” anonymous witnesses,
Second-hand testimony detailing the alleged remarks by a Ryan Wilks employee, dated in the week after the incident, contained passages with identical wording to a redacted email, dated in September, presented as evidence by another Ryan Wilks manager, the commission heard.
In contrast, the worker produced testimony from her friend and witness, who’s evidence was preferred to the “strangely inconsistent evidence of the employer”, Cambridge said.
The worker did not deny her drunkenness, saying she had “never been so drunk”, expressing remorse about the incident.
Cambridge said the conduct of employees outside of work hours has “increasingly become the subject of potential scrutiny by employers”, and that it was accepted by the worker the conduct could genuinely reflect badly on her employer.
“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 [Sydney Opera House],” Cambridge said.
But Cambridge said this wasn’t justification for the employer to have summarily dismissed the worker.
“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.”
Ryan Wilks has also been ordered to pay the worker lost wages.