Worker Sues for Unfair Dismissal After Chucking a “Sickie” for being Hungover
For some, the hangover sickie is a great Australian right and tradition. But what do the court’s think?
The Fair Work Commission has recently handed down its decision in Avril Chapman v Tassal Group Limited trading as Tassal Operations Pty Ltd.
Chapman was dismissed by her employer after she left a voice mail with her employer not long before 5 p.m. on Anzac day.
The Applicant had double cause to over indulge on the day as not only was it the ANZAC day public holiday but it was also her birthday.
“Hi Michelle, its Avril one of your most loved pains in the arse. 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,” Chapman said on the now infamous voice mail.
Tassal moved quickly, standing the fish processor down before proceeding to termination.
Part of the dispute was that Chapman claimed that she was doing the right thing as her job was dangerous. It was her opinion that she could not guarantee that she could operate machinery safely whilst being hungover.
To the contrary, her employer argued that she was abusing the safety requirements to intentionally over indulge on some of Tasmania’s finest beverages.
Deputy President Barclay (“DP Barclay”) found in favour of the employee.
In arriving at his decision, DP Barclay acknowledged that the employer had a valid reason to terminate the employment of Chapman.
However, taking into account a number of factors, and looking at the overall incident, he found that the termination was harsh and “”that another sanction such as performance management or a further, perhaps even final, warning was appropriate.”
DP Barclay looked at Chapman’s lack of previous similar incidents and believed she should have been given a second chance.
Chapman however did not escape some punishment. As her conduct had contributed to the scenario the commission deducted her compensation by 25%, meaning she received a payment of approximately $8,000 for the saga.
John Vizzone’s Take-Out Points
- Parties must be aware that the Fair Work Commission can deem employee’s actions as inappropriate but still find that they have been unfairly dismissed;
- Compensation in the Fair Work Commission can be relatively minor hence why most matters settle at conciliation. Both parties in this case probably spent more in legal fees than the final payout. You need good legal advice to try and resolve the matter quickly and efficiently at conciliation before going to a hearing;
- Perhaps the Australian sickie is not dead!
John Vizzone is available to act on behalf of employees and employers. Have a potential matter? Contact us on 9667 1271 or email to enquire as to how we can assist you.