Published 24 May 2015
An employee who was responsible for the death of 50 chickens after drinking alcohol before work on Melbourne Cup Day, has won an unfair dismissal case due to a lack of procedural fairness, and uncertainty and inadequacy of the employer’s workplace policy.
Ms Cannon was a machine operator / chicken harvester with Poultry Harvesting Pty Ltd. Her work was normally performed between midnight and 7am, and involved driving a piece of machinery with an attached conveyer belt through a large shed for the purposes of collecting chickens for harvest. On Tuesday 4 November 2014, Melbourne Cup day, Ms Cannon received a text message asking her to attend work at midnight that night. She was driven to work by a colleague having consumed, according to her evidence, approximately 3-4 glasses of wine between midday and 9.30pm. She fell asleep during her work, and caused the death of approximately 50 chickens that were smothered by the machine. She was dismissed as a result. After the accident Ms Cannon had spoken to her employer Mr Geminian, via telephone at 3am, in person at the farm 45 minutes later, and then by telephone the following afternoon. Ms Cannon had stayed at work for the remainder of her shift in order to be driven home by a colleague. The exact point in time in which Ms Cannon was dismissed was contested by the parties.
Before deciding whether the dismissal was unfair, the Commission needed to determine at what point in time the dismissal took place, and whether or not at that time the employer had a valid reason for the termination.
In regard to the time of dismissal, the Commission preferred the evidence of the Ms Cannon, and held that she was either dismissed at 3am over the phone, or at 3.45am in person, and not via telephone the following day as contested by Mr Geminian. At this point in time, the employer could not establish that they had a valid reason for the termination of Ms Cannon. The employer’s submissions to the Commission relied upon the assertion that Ms Cannon was dismissed for being in a state that could have “caused serious and imminent risk to the health and safety of a person” or amounted to “conduct that caused serious and imminent risk to the reputation, viability or profitability of Poultry Harvesting’s business.” However they could not establish that at the moment of dismissal they had made any attempt to establish that this was the case before electing to terminate. While Ms Cannon admitted that she did not want to drive a car to work, she claimed that this was not due to her being unfit for work, but was rather due to her not wanting to risk a mouth alcohol reading on a random breath test. Evidence relating to the limited amount of alcohol consumed during the day was not contested by the employer.
Further, while the Commission acknowledged that a workplace policy regarding alcohol use applied, it did not permit a finding that Ms Cannon was bound to a “zero tolerance policy”. The status of the document was uncertain and it could neither be asserted as a workplace policy or term of employment. Finally, even if it had been an effective policy, in taking the action to dismiss Ms Cannon immediately Poultry Harvesting Pty Ltd had not itself followed the policy’s procedure that required the employee to be stood down, tested, removed from the workplace, and warned or counselled.
The dismissal was found to be unfair, and Ms Cannon was awarded six weeks’ pay by way of compensation.