The case of a poultry worker sacked for allegedly being drunk on the job and who consequently won $7,000 in compensation for unfair dismissal has attracted a lot of media attention recently, some of it critical of the decision handed down by the Fair Work Commission. See The Sydney Morning Herald: Worker blamed for death of chickens after drinking wins unfair dismissal case.

It’s easy to sensationalise this case, particularly when it was alleged that the worker’s conduct led to the death of 50 or so chickens at the worker’s place of employment, Poultry Harvesting Pty Ltd in Mornington.

However, when the circumstances are properly read and understood, the decision makes complete sense.

The changing reasons for termination

Heidi, who is our client, was employed as a chicken harvester and had been with the same business for about seven years.

On 5 November 2014, the day following the Melbourne Cup, her employer called to terminate her employment.

In her evidence, Heidi said that her boss had called her during the early hours on that day, while she was still at work, and told her that she had caused the deaths of 50 chickens at the farm because she had been asleep in a truck when she should have been working.

In his response, her employer alleged that Heidi’s employment was terminated not during a telephone call in the early hours of 5 November 2014, but when he later visited the site and had “formed an opinion” that Heidi had been intoxicated and had lied in saying she had not been drinking at work. Her manager said he had formed this view based on what he believed was a smell of alcohol on Heidi’s breath and as a result of receiving a telephone call from another worker reporting that Heidi had not driven to work that day, and therefore leaving open the suggestion that she was too drunk to even work.

The employer sought to rely upon a policy which, as a supplier to La Ionica Chickens, he said the company was required to follow, which described a process for assessing whether a member of staff was intoxicated at work and if they were, how to deal with the matter, including the offer of counselling.

Heidi’s evidence was consistent throughout the hearing, both in her written statement and in her testimony. Heidi was clear that she was dismissed by telephone for allegedly causing the deaths of the chickens. In her evidence she said that she was only asleep in the truck momentarily while awaiting the arrival of a delivery truck. The Commission heard evidence that the employer allowed its staff to sleep for short periods during nightshift if they were required to wait for a delivery truck to arrive.

By contrast, in his evidence, the employer gave different versions of events in describing the timing of the termination. He said that he had sacked Heidi when he had attended the farm, and not at a later period during at which time he had formed the view that she was lying. When giving evidence, the manager no longer relied upon Heidi lying about the reason for the termination, but only that she had smelt of alcohol.

Given the inconsistency in the employer’s version of events, the Commission found for the worker. The Commission found that Heidi’s employment was terminated on the telephone while she was at work at 3.00 in the morning, and not as the manager had said when he had attended the workplace later that day. As her employment was terminated at 3.00 in the morning, the employer had not given Heidi an opportunity to respond to the reasons for the termination.

Contrary to media reports, there was no evidence by any witness before the Commission that Heidi was intoxicated at work.

The alcohol policy

The employer sought to rely upon what it thought was a no tolerance policy operating in the workplace, but the Commissioner found otherwise. In addition to the fact that the status of the no drinking policy was unclear, the employer had failed to make a direct assessment of Heidi supposedly drunken behaviour. In fact, he had allowed Heidi to continue working even though according to his own version of events, he had terminated her employment half way during the shift. The Commission found that it had not been established that Heidi was in fact intoxicated.

Heidi admitted to drinking about 3-4 glasses of wine on the day of the Melbourne Cup, but she said she had finished drinking approximately three hours before starting work. She explained that she did not want to drive as a matter of caution so as not to exceed the prescribed blood alcohol limit for driving. Could it then have been concluded therefore that because Heidi did not drive, she was intoxicated at work?

The employer had not at any stage ascertained that Heidi was intoxicated, either by directly observing her behaviour or by having her undergo a breathalyzer test. Having reached the conclusion that she was intoxicated, the employer had not sent her home. The fact that the employer said he smelt of alcohol on Heidi’s breath was insufficient to justify the termination of her employment.

Further, while the employer claimed that the company had followed the La Ionica zero tolerance of alcohol policy, according to its own policy management was allowed to use alcohol. Heidi was neither stood down nor removed from the workplace, nor was she  tested, or warned, or counselled. The employer could not establish that Heidi properly understood the firm’s policy and nor was it clear how it was incorporated into her contract or agreement for employment. The standard of behaviour therefore expected of the worker was unclear, and if the company was uncertain about which policy applied, its own or La Ionica’s, it would be unfair for the employee to expect the same.

Heidi was awarded $7,000.00 in compensation including payment to her superannuation fund.

What implications does the decision have?

The decision requires that a clear and unambiguous drug and alcohol policy is in operation in a workplace.

It requires that an employer form an objective assessment as to whether a worker is intoxicated, instead of relying on speculation, and that this assessment determine the level to which they are physically or psychologically impaired.