Salmon producer Tassal has been ordered to pay a former employee $8200 in compensation after the company fired her for calling in sick on the afternoon of ANZAC Day this year, admitting she had “over indulged” and would not be coming to work the next day.
The staff member worked in a processing role for Tassal between August 2012 and her dismissal in May 2017.
The events leading up to her dismissal began when she left a phone message with her employer on the afternoon of ANZAC Day, identifying herself as one of her employer’s “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,” the staff member said in the message.
When the employee returned to work on April 27, she was issued with a letter alleging misconduct on her behalf. The letter said she would be stood down with pay and needed to respond to the allegations the following day.
The letter accused the employee of deliberately consuming alcohol to a point where she would be unfit for work the following day. In response, the employee said it wasn’t an intentional choice.
“It was by [sic] BIRTHDAY, and friends dropped by unannounced,” she explained in an email.
“Would it have been wiser for mw [sic] 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,” she wrote in response.
On May 1, the business made the decision to terminate the employee based on a range of factors, including that her behaviour breached the company code of conduct policy and she did not show “any contrition” for her actions.
In response to the worker’s claim of unfair dismissal, the employer referred to a previous warning that had been issued to the employee after she left a message on the company’s production phone line on December 27, 2016, explaining she would not be coming into work because she was “fuckin’ shitfaced” after learning that her brother had cancer.
In considering this defence, Fair Work Commission Deputy President David Barclay found that although the two warnings from the employer both involved instances where the employee left messages left while under the influence of alcohol, they could not be considered similar in nature.
“In my view the circumstances behind the first warning are very different. The [employee] had found out that a close relative was gravely ill. She had recourse to alcohol to an extent where she could not work,” Barclay said.
Barclay found that while there was a valid reason for the employee’s dismissal, terminating her employment was harsh because he found the ANZAC Day incident was the only time in five years where the employee had displayed such behaviour.
“I am also alive to the fact that had the [employee] notified the [employer] on the morning of 26 April 2017 of illness and incapacity for work then termination of employment would have been unlikely,” he said.
The Commission ruled that reinstatement of the employee would not be appropriate but ordered Tassal to pay the employee $8229 in compensation.
SmartCompany contacted Tassal Operations but did not receive a response prior to publication. The former employees’ representative has also been contacted for comment.
Care and process must be taken on leave claims
Rachel Drew, partner at law firm Holding Redlich, says while cases like this one do put employers in a difficult position, there are steps a business can take to make sure things run smoothly if there is a dispute over a sick day, particularly if it relates to alcohol.
Speaking about the issue of alcohol consumption and sick leave generally, Drew says employers are able to request a medical certificate if an employee says they are unfit for work, but they should know that moving from this point to potentially dismissing a worker is a complex process.
“Attending work intoxicated can be a valid reason for dismissal, even summary dismissal. But it is not the same where the employee doesn’t show up to work,” she says.
If an employee admits they can’t attend their workplace because they are intoxicated, the employer must take care in regards to how they act next, Drew says. There may be some circumstances where a serious illness in play.
“Alcohol abuse in itself can be an illness, and employers need to take care around that,” she says.
The first point of call is to ensure a company’s personal leave policy touches on elements like when staff can ask for leave the day after a public holiday. This means there will be a starting point to warn an employee if they breach this behaviour.
The second important element is ensuring as an employer you “take care around alcohol abuse,” and keep it mind that it could amount to a genuine case of illness.
Thirdly, think about “the process you will follow,” Drew says.
This includes considering how warnings are issued before proceeding down the road of dismissal, and seeking advice where it’s not clear whether an employee is entitled to paid leave or an unpaid leave day.
“Employers shouldn’t attempt to make that judgment on their own,” Drew says.
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