Sacking for being too drunk to work ruled unjustified

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The Employment Relations Authority found that Turei Peters was unjustifiably dismissed from the Bay Packers fish processing plant in Tauranga after he took a day off work because he had been drinking the night before and into the morning.
Before the 2012 Christmas period, general manager Steven Meredith had spoken to staff about employees taking advantage of the relaxed work environment and reiterated the employment agreements, which said that staff had to give notice by text or voice message before their shift if they were unable to come to work.
Peters told the ERA that he was stressed by domestic issues and began drinking at noon on Boxing Day, which continued until 3am – two hours before he was due to start work.
At 4am he sent his supervisor a text message saying he was too “crook” to come to work.
The next day, he was called into a disciplinary meeting and shown a form which stated that dismissal for “serious misconduct” didn’t require any warning.
He signed the form and was dismissed, with the company taking into consideration that it was not the first time he had been too drunk to come to work.
Authority member Eleanor Robinson found that the company did not give Peters enough time to prepare for the disciplinary meeting and it should have taken into account that he had acted responsibly by not attempting to come to work in an unfit state.
As Peters was responsible for his actions, he did not qualify for remedies, but was reimbursed $8,528 for lost wages.
Jennifer Mills, partner at Minter Ellison Rudd Watts Lawyers, said the case was a classic reminder of the importance of procedural fairness when dismissing an employee.  
“Most employers, when faced with an employee who has rendered himself unfit for work as a result of drinking between midday and 3am, knowing that he had a 5am start time, would consider this to be a clear-cut case of serious misconduct. However, this case serves as a warning that following a sound disciplinary process is just as important as the substantive basis for a decision.”
She said that in this case, the main procedural difficulty was the lack of notification provided to Peters in advance of the disciplinary meeting, which was about 30 minutes.  
“An employee must be allowed a reasonable period to consider their response to allegations of misconduct and to seek representation, or to organise a support person. As a rule of thumb, we recommend providing three working days’ notice, although this may vary depending on the nature of the allegations the employee is facing.
“We also recommend that an employer give an employee notice of a disciplinary meeting in writing, with all of the allegations and the potential penalty for the conduct set out clearly.”

Another factor that contributed to the authority’s finding of unjustified dismissal was Bay Packers having taken into account the fact that Mr Peters had missed another shift due to drunkenness the previous Christmas. 
“It appeared that Bay Packers had previously been somewhat more lenient in enforcing its absence policies and had only tightened this up in November by informing staff that unauthorised absences would not be tolerated going forward.  In this context, the authority criticised Bay Packers for taking Mr Peters’ absence into account, given that he had not faced any disciplinary action at the time and given that the previous instance had taken place more than a year earlier,” said Mills.
HR takeaways:
  • Inform employees of the allegations against them
  • Allow employees sufficient time to prepare a response and find representation
  • Be consistent in your enforcement of company policies and don’t expect to be able to rely on previous conduct in a disciplinary context where the employee has not been warned for that conduct

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