Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd [2017] FWC 4630: Employee Wins Compensation for Unfair Dismissal Claim

Friday 15 September 2017 @ 10.34 a.m. | Industrial Law | Legal Research

In the recent case of Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd [2017] FWC 4630 (7 September 2017), Tasmanian salmon producer Tassal Group (Tassal) has been ordered to pay a former employee $8,200 in compensation after the company dismissed her for calling in sick on the afternoon of ANZAC Day in 2017, with the former employee admitting that she had “over indulged” and would not be coming to work the next day.

Background

The phone message which was left by the employer on the afternoon of ANZAC Day, identified herself as one of her employer’s “… most loved pains in the arse …” and also leaving another comment:

“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.”

Upon returning to work on 27 April 2017, she was issued with a letter alleging misconduct on her behalf which stated said she would be stood down with pay and was required to respond to the allegations the following day.

The Judgment

In the events leading up to the dismissal, it was alleged that the applicant had breached the Respondents Code of Conduct by not being responsible for her actions and accountable for its consequences because, at para [10] of the judgment:

“… You had deliberately made a decision to consume alcohol to the extent that you would not be fit for work on 26 April 2017 when you were required to attend and be in a fit state to carry out your duties safely.”

In response to the allegations, the employee said it wasn’t an intentional choice, at para [11] of judgment:

“This is my response to the allegation against me. Firstly, I did not deliberately make the decision to consume alcohol to the point were (sic) I would be unfit to attend work the following day. It was by BIRTHDAY, and friends dropped by unannounced. I had my official birthday party on the Monday night and wasn’t expecting visitors on Tuesday, however, visitors I got. As the afternoon went on I realised it was going to be a long night and I believe I acted responsibly and respectfully by contacting management to let them know I wouldn’t be fit for work. Would it have been wiser for mw 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. It was not my intention to deliberately take the day off, the events were not planned and not expected, and again, I feel that contacting management on the 25th was the right and responsible thing to do.”

On 1 May 2017, 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.

The Unfair Dismissal Claim

Responding 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 27 December 2016, explaining she would not be coming into work because she was “f*ckin’ sh*tfaced” after learning that her brother had cancer.

In considering this defence, FWC Deputy President 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.

The Deputy President said at para [75]:

“… However in my view the circumstances behind the first warning are very different. The Applicant had found out that a close relative was gravely ill. She had recourse to alcohol to an extent where she could not work …”

The ANZAC Day Claim

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.

He said at para [82]:

“I am also alive to the fact that had the Applicant notified the Respondent on the morning of 26 April 2017 of illness and incapacity for work then termination of employment would have been unlikely.”

The FWC Ruling

The Commission ruled at para [109]:

“The reduction for misconduct is an exercise of an unfettered discretion. I take all circumstances into account. Doing the best I can I reduce the amount by 25%. As a result I award the Applicant $8229.00 gross by way of compensation.”

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd [2017] FWC 4630 (7 September 2017)

Worker wins $8000 in compensation after being dismissed for admitting birthday drinks left her unable to work – smartco.com.au

Related Articles: