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Out-of-hours misconduct justified dismissal

July 24, 2018

By Victoria Hansen and Lindsay Carroll, NRA Legal

The Fair Work Commission (FWC) has ruled that a worker who threw a full glass of beer over the heads of his colleagues at an official company Christmas party was justifiably dismissed. This is a significant decision regarding the dismissal of employees for out-of-hours conduct.

Sione Vai v ALDI Stores (A Limited Partnership) [2018] FWC 4118 (11 July 2018)

The facts

Mr Vai was employed by ALDI as a Warehouse Operator at its Distribution Centre (DC) in Dandenong. Section Leaders at the DC organised a Christmas party for employees, which was paid for by ALDI. Mr Vai had been drinking prior to attending the party, and continued drinking upon his arrival until he was refused service by bar staff.

Mr Vai alleged one of the bar staff made a racial slur against him and he became angry, ultimately throwing his glass of beer in the direction of a security guard, over the heads of some of his colleagues. The glass of beer, which was full, hit a lamp and sprayed other workers with its contents. Mr Vai was dismissed as result of his conduct.

The application

[Mr Vai brought an unfair dismissal application in the Fair Work Commission and sought more than $32,000 in compensation, based on his view that the dismissal was unfair and that he would have worked for ALDI for at least another two years.

He argued that he could not recall the incident, and was in any case provoked by the bar staff’s racial comments. Further, he claimed the dismissal was out of proportion with his conduct, and that as no managers were present at the event, it could not be considered an official ALDI function and thus was not related to his employment.

Mr Vai relied upon the Fair Work Commission’s decision in Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 (Keenan), in which Mr Keenan was found to have been unfairly dismissed for his conduct at a work function at which his employer had paid for the unlimited service of alcohol.

ALDI argued that they had made a significant effort to ensure appropriate standards of behaviour by providing security guards and restricting the service of alcohol. ALDI also claimed that the relevant code of conduct was not limited in its scope to the four corners of its premises and extended to work functions outside of the workplace.

The outcome

Commissioner Gregory paid particular attention as to whether ALDI had a valid reason to dismiss Mr Vai.

The Commissioner noted that the circumstances in which Mr Vai was dismissed differentiated from those in Keenan, as the provision of alcohol was limited and measures were put in place to ensure appropriate behaviour.

Given the significance and seriousness of Mr Vai’s conduct, in that his colleagues could have been severely injured, a warning would not have been appropriate. As such, Mr Vai’s dismissal was justified.

What this means for you

This case confirms that there is a very fine line between an employee’s personal and professional life.

In an out-of-hours setting, it is important for employers to ensure their employees are familiar with the company’s code of conduct, and assist them to make decisions which limit unacceptable conduct. This includes ensuring alcohol is served responsibly, and that behaviour is appropriately monitored through security guards or by company representatives. .

Is your code of conduct up-to-date? To  speak to one of our workplace advisors, call the NRA today on 1800 RETAIL (738 245).


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