Employment Contract: Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) 2013/148638

The District Court of NSW has awarded a state manager $296,650.75 for the breach of his employment contract following his termination for being drunk at a training conference the morning after a work related dinner.

Mr Mitchell-Innes was employed by Willis Australia Group Services (‘Willis’) as the NSW General Manager. In late October 2012, Mr Mitchell-Innes was in Melbourne to attend a work-related training conference. On the Sunday night prior to the conference, he and a number of other colleagues attended a staff dinner. During the dinner, $740 worth of alcohol was consumed between approximately 12 people. The alcohol was paid for by Willis as it was deemed to be work-related. After dinner, Mr Mitchell-Innes and a number of other colleagues went to a nearby pub and consumed more alcohol.

Sometime between 2am and 6.45am (there was competing evidence, of which the judge made no conclusion), Mr Mitchell-Innes went back to his hotel, and not being able to find his room key, fell asleep on a lounge outside his hotel room. Whilst he was asleep on the lounge, he was seen by one of his colleagues.

Later that day, Mr Mitchell-Innes arrived at the training conference. Colleagues claimed that he smelt strongly of alcohol, was relaxed, playful, smiling, laughing, enjoying himself, talking loudly, slurring his words, making animal noises and throwing lollies.

Willis subsequently terminated Mr Mitchell-Innes’ employment as a result of his condition at the conference.


Mr Mitchell-Innes’ employment contract permitted Willis to summarily terminate his employment for gross misconduct.

The Court found that as Mr Mitchell-Innes was intoxicated during the conference, his behaviour amounted to misconduct. However, as the conduct was a solitary, one-off event, the conduct was not gross misconduct which warranted dismissal. The Court also gave consideration to the workplace culture of consuming alcohol whilst wining and dining with clients and the fact that Willis paid for the alcohol on those occasions.

It was found that Willis had breached the employment contract in terminating Mr Mitchell-Innes’ employment in circumstances which did not amount to gross misconduct.

Mr Mitchell-Innes was awarded damages of $296,650.75 which was made up of loss of salary, loss of retention bonus, loss of long service leave entitlements and interest.

 * PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.