FWC upholds dismissal of glass-throwing employee at work Christmas party FWC upholds dismissal of glass-throwing employee at work Christmas party

FWC upholds dismissal of glass-throwing employee at work Christmas party

12 December 2018 | Employment and Safety

The Fair Work Commission made a significant decision on out-of -hours conduct in finding that ALDI had a valid reason to dismiss an employee for throwing a full glass of beer over the heads of other employees at a work Christmas function.

In Issue

  • Was there a valid reason for the employee’s dismissal?
  • Was the employee’s dismissal harsh, unjust or unreasonable?

The Background

The applicant (Mr Vai) was employed as Warehouse Operator with ALDI Stores, but was dismissed in December 2017 following an incident at a work Christmas party.

Mr Vai had been drinking at home before arriving at the party, and became increasingly agitated throughout the night when he was refused service by bar staff. Several Section Leaders attempted to calm Mr Vai down before he threw a glass of beer over the heads of his colleagues, towards security guards. The glass smashed against a wall and its contents sprayed over employees.

In conducting its investigation into Mr Vai’s conduct, ALDI reviewed CCTV footage of the incident and interviewed employees who had witnessed the events. The following week, Mr Vai was invited to attend a meeting and respond to the findings of the investigation. He was subsequently dismissed for serious misconduct.

Mr Vai brought an application for unfair dismissal to the Fair Work Commission (FWC) on the grounds he could not recall the incident, was provoked by bar staff, and the party was not an official ALDI function.

The Decision at Hearing

The Commissioner found that the function was within the scope of ALDI’s legitimate supervision and reasonable steps had been taken to limit the behaviour of those in attendance. Namely, the presence of security guards and the fact that measures for responsible service of alcohol were in place.

Whilst acknowledging the employers’ duty to maintain the standards of safety and behaviour at work functions, the Commissioner also recognised the responsibility of employees to act within reasonable bounds and found that Mr Vai had not acted in this way.

It was also held that it would not have been appropriate in these circumstances for ALDI to simply issue a warning to Mr Vai, given the risk of harm and the potential significance of the fact that the thrown glass could have caused serious injury.

Although the Commissioner did not consider Mr Vai’s intoxication as a factor enabling him to avoid responsibility, it may be viewed as a mitigating factor.

The Commissioner ultimately held that Mr Vai had been dismissed for a valid reason, and that the dismissal was not unfair.

Implications for you

This is a timely reminder for employers to take reasonable steps to maintain appropriate standards of behaviour at work functions. But the decision also highlights that employees must also act within reasonable limits and cannot expect to be excused from responsibility for their actions in instances where their employer has provided alcohol. Employers should consider what measures should be in place when alcohol will be served at work function, including responsible service of alcohol, making sure food is also offered, and the presence of management and/or security guards.

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

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Adrian Lewis

Adrian Lewis

Senior Associate

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