While we know the majority of organisations have fun end of year events that go off without a hitch, the case of Sione Vai v ALDI Stores (A Limited Partnership) [2018] FWC 4118 reminds us of what needs to be done before and when it goes off course.
It is a significant decision around the balance between an employer’s obligation to take reasonable steps to maintain standards of behaviour and ensure employees’ safety and an employee’s responsibility to act within reasonable bounds.
Mr Vai, was dismissed from his employment as a storeperson at Aldi for throwing a full glass of beer over the heads of follow employees at a Christmas Party.
The evidence given indicated that Mr Vai had been consuming alcohol prior to the event, and at the event became increasingly agitated when staff began refusing to serve him alcohol.
Three section leaders at the event approached Mr Vai and suggested that he should either calm down or leave the party. However Mr Vai then threw his glass of beer which sprayed colleagues with beers and smashed against a lamp.
He also relied heavily on other unfair dismissal cases of Keenan and Rose, and argued that (amongst other things):
- he had been provoked by bar staff using racial slurs, calling him “coconut man”.
- his consumption of alcohol and the unlimited service of alcohol at the event should be considered a mitigating factor to his behaviour (as per Keenan).
- the absence of senior management meant it was not an official work event. and even if those events did occur the decision to dismiss for serious misconduct was disproportionate to the conduct.
- he was not given an opportunity to show cause before a decision was made to terminate his employment.
- The decision to dismiss was disproportionate to the conduct and a warning would have been appropriate.
ALDI noted that:
- It had reviewed CCTV and interviewed witnesses including Mr Vai about the alleged conduct.
- Mr Vai, in his interview was told about the allegations in relation to his conduct. Initially Mr Vai did not remember what had occurred. Mr Vai admitted to getting agitated by bar staff, but he also indicated that his friend had thrown the glass of beer. ALDI went back to review the CCTV footage again and confirmed it was Mr Vai who threw the glass.
- A further meeting was arranged with Mr Vai to put the allegations to him more fully.
- Efforts were also made to ascertain whether racial slurs were made – none were reported and none were overheard by any witnesses.
- ALDI did not supply an unlimited amount of alcohol. There were limits of what was being served, a security guard was allocated to the party, and there was adherence to the RSA laws. While it was conceded that no specific efforts were made to tell employees of the expectations regarding their behaviour at the event, efforts were made to ensure that things did not get “out of hand”.
After considering the evidence and submissions the Commissioner was satisfied that:
- ALDI had established that Mr Vai threw the glass across the room as alleged and that behaviour constituted a valid reason for dismissal.
- Mr Vai was, on the whole, given a reasonable opportunity to respond to the allegations.
- The availability of alcohol was different to the circumstances in Keenan.
- Mr Vai had admitted to drinking prior to the event and heavily at the event, and also acknowledged being prone to behaving erratically in such circumstances. As a result he should accept much of the responsibility for placing himself in those circumstances.
- There was serious potential for significant physical injury to have resulted from Mr Vai’s actions.
On that basis the Commissioner did not consider the dismissal was harsh, unjust or unreasonable.
The steps taken before the event and the investigation were not perfect, but were close. The foundations of preventative action and procedural fairness were all there and the claim was successfully defended.
Unfortunately the actions of this employee brought the general festivities and celebrations on this occasion to a swift end. However we don’t want employers to be deterred from organising events altogether! The reality is, sometimes it will happen. We think these kinds of events are still an important way to encourage employee bonding and also recognition and reward for everyone’s hard work and contribution. What should be kept in mind is that good preparation, planning and communication are key to organising safe and successful work events. Being mindful of these potential concerns and issues mean that if anything does arise they can be dealt with swiftly when they occur.