Drunk the morning after……………..misconduct or gross misconduct?

In a recent legal case decision just prior to Christmas, a state manager from an insurance company had been sacked for arriving drunk at a staff training conference, the morning after a work-related function.  The NSW District Court judge accepted the employee had smelt of alcohol, spoke loudly, lacked seriousness, threw a lolly and made animal noises, however after the judge took into account the company’s approach to drinking, based on a review of the employee’s contract of employment, company policies etc, he accepted that the company had proved the state manager’s misconduct, but not gross misconduct.

“Something more is required, some aggravating conduct such as repetition of the intoxication, a severe level of intoxication, adverse impact on employee or client safety, violence, offensive conduct or offensive language, a serious impact on reputation or significant financial loss.  “But none of these features or other aggravating features existed in this case.

“Here there was a manifestation of low-level intoxication, without other consequences of behaviour of significance.”

The judge said the manager spent most of the morning at the back of the room by himself working on his iPad.

“In my view, this behaviour, [the manager’s] condition at the conference, does not constitute a repudiation of the agreement, or other sufficiently serious misconduct enlivening a power of summary termination. It was not serious misconduct in serious circumstances.”

The state manager was awarded damages of $296,650 based on $99,092 in lost salary, $118,182 for his lost retention bonus, $48,620 in long service leave and $30,755 in interest.


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