26 Oct 2017
Update: 10 beers too many: Full Bench overturns ship captain's unfair dismissal decision
By Anna Casellas, Maddy Clohessy
When disciplining an employee, it will be relevant that an employee in breach of a policy is a senior employee who is responsible for implementing the employer's policies.
In a recent unfair dismissal decision of the Fair Work Commission, Commissioner Bissett found that the dismissal for serious misconduct of a ship captain was harsh, despite the employer having a valid reason to dismiss the employee after breaching the company's safety policies when he registered a 0.047 blood alcohol reading after consuming 10 beers the night before.
The dismissal was found to be harsh because the employer had failed to properly close off on an earlier incident involving the employee which involved him being threatened two years prior by another crew member which was revived when the employees had another encounter in the lead up to the misconduct.
Further, the dismissal was found to be harsh because the employer had failed to consider that dismissal was not a mandatory outcome under the policy, and it had failed to consider the alternative disciplinary action suggested in its own policy for such a breach, including education and rehabilitation.
The employer swiftly moved to appeal this decision, and the Full Bench of the Fair Work Commission last week overturned the finding that the dismissal was unfair. The Full Bench found that the Commissioner had not given significant weight to the ship captain's seniority within the company and his failure to self-report his alcohol consumption prior to testing positive.
The Full Bench held that the captain had breached the safety policy twice, first by breaching the zero-tolerance alcohol policy, as well as by failing to advise his employer that he was taking prescription medication.
When disciplining an employee, it will be relevant that an employee in breach of a policy is a senior employee who is responsible for implementing the employer's policies. Given his seniority and responsibilities in a safety critical industry, the Full Bench said it would be unsafe to allow the decision to stand.
The matter has been remitted for rehearing to the Fair Work Commission.