By Ross Levin, Partner, Malcolm Davis, Partner, Adam Lunn, Partner and Lisa Anaf, Partner
Socialising with colleagues after work, often over a few drinks, is seen as a normal incidence of employment in Australia.
However, what if someone has too much to drink and matters take a turn for the worse? How should the employer react, and what are the other consequences which can arise?
In Gregory v Qantas, a pilot had his employment terminated after inappropriately touching a female colleague in a taxi. This incident followed a drinking session at an Irish pub while the employee and his co-workers were on a stop over in Santiago.
Although there was suspicion that the Applicant had been the victim of drink spiking (the result of a drug test identified the presence of cannabinoids in the Applicant’s system), Qantas proceeded to terminate the Applicant’s employment for serious misconduct.
At the hearing before the Fair Work Commission (FWC), the employee’s counsel submitted that the termination of the employee’s employment in these circumstances was “grossly disproportionate” for a single incident, noting that the employee had a 20 year unblemished record as a Qantas pilot.
The issue of the alleged “drink spiking” was also examined. The FWC accepted evidence that at one point on the evening in question, the employee was seen speaking with a local, away from his co-workers, and then left his colleagues to go to another part of the bar.
After hearing all of the evidence, Commissioner Cambridge found that:
“The significantly more plausible proposition which is most strongly supported by the totality of the evidence is that the (employee) separated from his colleagues as a deliberate act in the pursuit of imbibing cannabis, or a cannabis derivative, or some other substance”.
As such the Commissioner found that the employee’s employment was terminated for a valid reason.
The Commissioner also commented:
“As an element of sound management practice and good leadership, it would seem that whilst on any stopover the socialising of the flight crew together should be encouraged. However, whether such encouragement for socialising, even in a two night stop over, should extend to what might be described as “kicking on” after dinner to the nightclubs and bars precinct of a city might a matter worthy of review”.
In this case, the employer’s decision to terminate the employee’s employment was vindicated (although Commissioner Cambridge did indicate that if the decision was his at the time, he would likely not have terminated the employee’s employment).
More importantly however, although this decision relates to the airline industry, the matters considered in it have relevance to all areas of employment. In particular, where alcohol (and potentially drugs) are available in the context of work related socialising, employees are more likely to misbehave. Depending on the level of such misbehaviour, all manner of claims can land at the feet of an employer, including sexual harassment complaints, workers’ compensation claims and bullying claims, to name just a few.
Therefore, is it important that employees are monitored in these situations where possible, to ensure that their level of intoxication is not such that they become a risk to their co-workers, themselves, or their employer.
Robust policies and procedures in dealing with work social events, and in social discourse connected with work, are a must for all employers.