26 October 2016


Off and racing – Dealing with Melbourne Cup matters

Lyndall Humphries, Senior Associate

With the Melbourne Cup just around the corner, here are some tips for employers on dealing with the fallout that can arise after the celebrating ends.

Just a glass?

Celebrating the Melbourne Cup or other festivities brings with it risks to employers, especially when employees indulge in a few drinks or special lunches have been organised during the day. It is important that employers have a clear policy regarding alcohol in the workplace that is communicated to all employees and consistently implemented.

One case illustrates that this is particularly important when employees are using heavy machinery. A poultry worker turned up to work after having had three to four glasses of wine in the course of Melbourne Cup day celebrations and ran over 50-60 birds, killing them all. She was dismissed during her shift because she arrived at work intoxicated, and this was conduct that that could have caused serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business. Despite having been dismissed, the poultry worker continued to work for potentially another three to four hours. Although the employer claimed to have a zero tolerance policy to drugs and alcohol in the workplace, the evidence did not support a finding that the poultry worker was bound by a zero tolerance policy.

The Fair Work Commission (“FWC”) found that there was no valid reason for the dismissal. It noted that no steps had been taken to assess the poultry worker’s condition and she had not been directed to cease work during her shift. It also found that the employer’s policies were unclear in regards to the standard of behaviour to which the poultry worker was being held to account.

Just a cheeky sickie?

While calling in sick on Melbourne Cup day may result in some raised eyebrows, employers also need to be careful about jumping to conclusions.

In one case, a rigger was dismissed following the conclusion of an investigation into his unauthorised absence from work. The rigger informed his supervisor at the commencement of his shift that he was leaving early that day to attend Melbourne Cup celebrations. When his supervisor informed him that his absence would be unauthorised, he said “oh well I’m just sick then” and left work, later producing a medical certificate stating he was unfit to perform his duties on Melbourne Cup day.

The FWC appreciated the employer’s scepticism over the genuineness of the rigger’s illness but concluded that it was not unauthorised leave because there was no evidence to challenge the medical certificate. The FWC noted that the rigger was difficult to manage but, in the circumstances, had been unfairly dismissed. Permission to appeal the FWC’s decision was refused by the Full Bench of the FWC.

Where an employer has legitimate concerns about the veracity of a medical certificate this must be approached on the basis of actual evidence and not mere suspicions based on the day in question.

Just a quick bet?

Partaking in the excitement of Melbourne Cup should not mean that an employee fails do their job.

For example, consider the case involving a child and family caseworker who was assigned to escort a juvenile in custody to visit his parents’ family home. Sometime after noon the caseworker left the family home to go to the TAB to place some bets and returned just before the start of the races, but the juvenile was no longer there. In fact, the juvenile had gone to the home of an acquaintance and consumed a significant quantity of alcohol, marijuana and pills before becoming involved in a fight while armed with a samurai sword. Eventually, the police intervened and after some heightened activity gained control of the situation and took the client into custody. When the caseworker returned to the office he was suspended on pay and an investigation was conducted into his conduct. Perhaps not surprisingly, he was subsequently dismissed, which the Australian Industrial Relations Commission considered justified as he had been grossly negligent in his responsibilities.

No one wants to discourage employers from using the Melbourne Cup festivities to bring their team together and reward them for their hard work, but we strongly suggest that employers make clear their expectations to avoid an unfortunate fallout and investigate any issues that do arise without delay.

Posted in Legal Advice & Consulting and tagged .
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