Dismissal of Supervisor following alcohol consumption at lunch upheld

Dismissal of Supervisor following alcohol consumption at lunch upheld

The Fair Work Commission has upheld the dismissal of a supervisor who allowed alcohol consumption at a work function, despite being prewarned by his manager of strict protocols that he was to observe and enforce.

From April 2021 until 16 August, 2022, the supervisor was employed by Omnigrip Direct Pty Ltd (the Company), an engineering and construction company. He was dismissed for serious misconduct after the Company concluded that he had allowed members of his team to consume alcohol at lunch and had himself consumed alcohol, contrary to a management direction and company policy. He admitted that he drank alcohol at the function but denied that he allowed his team to drink.

The supervisor gave evidence that on 4 August 2022, his team was finishing a project for the City of Port Phillip, installing concrete islands. The crew had worked hard and were exhausted. One of the workers suggested that the team went to lunch when the works were completed. He called the Company’s Chief Executive Officer and suggested that he take the team out for lunch.

The CEO agreed but said that no alcohol was to be consumed. The supervisor’s evidence was that when he arrived at the lunch venue, he told several of the crew that the Company would pay for meals but that there was to be no alcohol. He then went inside the restaurant and saw that two employees had already ordered food and drinks. He and the others then placed their orders. According to the supervisor, he reminded the crew that no alcohol was to be consumed.

The supervisor said that during lunch, he saw several of the crew members consume multiple alcoholic drinks. He said that, as he had finished work for the day and as others were drinking, he ordered himself a single scotch and dry. The lunch ended at around 2:40 pm. The crew discussed their plans for the following day’s work and left. Later in the afternoon, the supervisor was contacted by the project client and told that work was to be suspended and that certain ‘make safe’ activities would need to occur. He attended the site that evening to assist contractors in completing the relevant tasks.

The following day, the supervisor was contacted by the CEO and stood down in relation to alcohol being consumed at the lunch. The CEO’s position was that contrary to his directions, the supervisor had not told the crew that no alcohol was to be consumed at the lunch, he had consumed alcohol himself, and had allowed two employees to return to the work site after consuming alcohol.

Shortly thereafter, he was terminated for serious misconduct.

In evidence before Deputy President Alan Colman, the CEO said that he clearly recalled what he said to the supervisor during the pre-lunchtime telephone call for two reasons. First, he knew that the team members would need to drive their company vehicles back to the factory after the lunch. The usual practice is for employees to commence work at company premises, then drive to their worksite in a company vehicle. Secondly, the CEO had previously had concerns about the supervisor’s attitude to the Company’s drug and alcohol policy.

The policy states that alcohol is not to be consumed during paid work hours and that employees must not consume alcohol at any workplace, subject to the CEO’s discretion to permit limited alcohol consumption at events and functions. The CEO recalled that, during a work event in early 2022, the supervisor had asked him why alcohol was not permitted at the event, when it had been allowed on other occasions. He replied that the Company had a zero alcohol policy, but if there was a formal function at which drinking was allowed, employees would be told, and arrangements would be made for them to get home safely afterwards.

The supervisor responded by saying, “That is bullshit. You say that simply because you don’t drink, and you’re pushing that on others”. The CEO replied that this was the Company’s policy.

In determining the matter, the Deputy President accepted the CEO’s evidence that he clearly told the supervisor on two occasions that no alcohol was to be consumed and that the supervisor acknowledged that he understood this. This was clearly a lawful and reasonable direction.

Further, the Deputy President found that on 4 August 2022, the supervisor did not tell employees that they must not drink at the lunch, and did not take the CEO’s instructions concerning alcohol seriously. The Deputy President also found that the consumption of alcohol by MW and crew members was contrary to the Company’s drug and alcohol policy because, at the time of the lunch on 4 August 2022, their working day had not yet ended, in specific breach of the policy.

The Deputy President also rejected the suggestion of the supervisor that the Company had an inconsistent approach to the consumption of alcohol. In his opinion, the policy was clear in that there was to be no alcohol on company time or in the workplace and that the CEO had the discretion to permit limited alcohol for approved functions and events, which he did from time to time.

Finally, the Deputy President rejected another suggestion of the supervisor that, because the crew was only assisting him on the project and were not his direct reports, he was not responsible for them. He noted that the supervisor, “was the senior person present at the lunch. It was (he) who asked for (Mr S’s) permission to take the team to lunch. It was (he) who was told, twice, that there was to be no alcohol”.

The application was dismissed.

MW v Omnigrip Direct Pty Ltd [2022] FWC 3174 (1 December 2022)

For queries about appropriate behaviour, misconduct investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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