Getting the legalities right in your small business can save you tens of thousands of…
Business Fined $8 000 for Sacking Drunk Worker. Do You Know Your Rights as an Employer?
Imagine that one of your employees leaves a voicemail message on your work telephone at 4:55pm saying that they have been drinking because it’s Anzac Day, and they have had unexpected guests arrive because it’s their birthday, so, they have decided to continue drinking and will be taking tomorrow off as a sick day because they will be in no condition to come to work.
Imagine that they have already received a written warning for exactly the same behaviour (although the reason for drinking was different the first time). As an employer, you might think that this is pretty serious behaviour, showing a pattern of disregard for employment responsibilities, and you might decide to sack them. The factory that employed this worker in real life decided to do just that.
The judge, in that case, decided that firing the employee in that situation was inappropriate, and ordered the business to pay the worker $8 299. The judge seemed to indicate that taking a sick day for a hangover is legitimate, despite the hangover being self-inflicted, and despite the employee purposefully deciding that they were going to continue to drink to the point where they would not be fit for work the next day.
What does the public think?
When I posted a link to this story on Facebook, I did not anticipate the barrage of vitriol that would follow. Commenters fell squarely into three camps:
- Some felt that employees have the right to ‘a life’ and employers who expect employees not to be spontaneous are ‘uptight’. If employers are inflexible and expect their employees to perform like ‘robots’, then it is the employer’s own fault if sick leave and other benefits are abused. “At least she was honest”, these commentators claim.
- Others said that the behaviour showed a disrespect for the employer, and showed why so many businesses are outsourcing to overseas contractors, because local employees are irresponsible, and expect to be compensated when they are clearly in the wrong. “By claiming sick leave when she was not sick, this employee was dishonest”, these commentators lament.
- The third group, like the first, showed no sympathy for the employer. However, their views were based on comments that “All employers should understand employment law, and if they don’t know that they are supposed to give three warnings before firing someone, then they deserve to be forced to pay compensation.” Their lack of understanding of the law (ironically, while lecturing others that they should know what the law is), is somewhat of a concern.
As an employer myself, I was surprised at how many responders felt a sense of entitlement, and that employers were quite unreasonable expecting employees to attend work on their scheduled days, and many expected employers to be more understanding even if the reasons for being absent from work were fairly minor (or result from the employees deliberate lifestyle choices). Of course, this group believed that the employer should still pay the employee on those days.
What does the law say?
The law actually does not say that three warnings are required. There are instances when one or even no warning would be sufficient prior to terminating employment. Naturally, these would need to be extremely serious. Conversely, sometimes three warnings are insufficient to justify terminating someone’s employment.
One ‘genius’ on Facebook suggested that the employer, in this case, should have provided two warnings for using sick leave to be absent for reasons of a hangover, and a third and final ‘warning’ for having a bad attitude about work attendance, and immediately fire the person at that time.
This reasoning is flawed because the purpose of written warnings is to indicate to the employee that the behaviour needs to be modified, and give the employee an opportunity to do better. Giving someone a written warning for a particular ‘attitude about work attendance’ would be an invalid warning. Warnings need to be about particular behaviours that can be modified.
As an employer, you can expect your staff to work a certain number of hours (giving them time off for sick leave and annual leave etc.), but you cannot require them to have a good attitude about being there. Naturally, if the attitude spills over to their behaviour, for example, if they are unacceptably rude to a customer, the rudeness can be the subject of a warning and additional training can be given on how to deal with people.
To lead to dismissal, the warnings should generally relate to the same type of inappropriate behaviour. So two warnings for abusing sick leave, could not be followed by a third warning for something fairly minor, to tip the scales in favour of termination. This is because the third warning is about something else, and the employee must be given time to fix their behaviour relating to that particular behaviour.
Employers should note that in cases determined by Fair Work Australia, there is a tendency to find in favour of employees, even to the detriment of what employers and the general population might consider to be common-sense.
What does Fair Work Australia say?
This quote from Fair Work Australia sums up the situation:
“It’s best practice to give employees warnings in writing before ending their employment.
An employer doesn’t have to give an employee 3 warnings, or even 1 warning but an employer should give the employee a chance to fix any performance issues. If an employer fires an employee who then makes an unfair dismissal claim, the Fair Work Commission will usually take this into consideration.
If a business does use warnings they need to make sure:
- they are clear about the reason for the warning
- they write down all the details
- they set clear expectations about what needs to be done differently
- that the warning is fair and reasonable in the circumstances.
For specific advice about using warnings and terminating staff, it’s best to get independent advice from an employer association or lawyer.
“The opinions expressed by Smallville Contributors are their own, not those of www.smallville.com.au"
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