1
Fair Work Act 2009
s.394—Unfair dismissal
Sione Vai
v
ALDI Stores (A Limited Partnership)
(U2017/13703)
COMMISSIONER GREGORY MELBOURNE, 11 JULY 2018
Application for relief from unfair dismissal – misconduct – held valid reason for dismissal.
Introduction
[1] Mr Sione Vai was employed as a Warehouse Operator by ALDI Foods Pty Ltd as
General Partner of ALDI Stores (A Limited Partnership) (“ALDI”) at its Distribution Centre
in Dandenong. He had been employed by ALDI since 1 November 2013.
[2] On 25 November last year Mr Vai attended a Christmas party organised by ALDI for
its Warehouse Operators at the Distribution Centre. It was held at the Brownstone Micro
Brewery at the Atura Hotel in Dandenong (“the Hotel”). The party was held in a private room
at the Hotel and the costs of the room hire, together with food and drinks, were met by ALDI.
However, Mr Vai was dismissed from his employment following an incident at the party
involving him allegedly throwing a beer glass and its contents in the direction of other
employees, including two Section Leaders. He now claims to have been unfairly dismissed.
[3] Mr G. Dircks, together with Mr T. Koletsos, appeared on behalf of Mr Vai. Mr
B. Avallone of Counsel appeared on behalf of ALDI. Both were given permission to appear
under s.596(2)(a) of the Fair Work Act 2009 (Cth) (“the Act”) as the application involved a
degree of complexity and their involvement might enable it to be dealt with more efficiently.
The Relevant Legislation
[4] Section 385 of the Act states that a person has been unfairly dismissed if the
Commission is satisfied their dismissal was “harsh, unjust or unreasonable.”1
[5] Section 387 continues to set out the criteria the Commission must take into account in
considering whether the dismissal was harsh, unjust or unreasonable. It states in full:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
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DECISION
E AUSTRALIA FairWork Commission
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(a) whether there was a valid reason for the dismissal related to the
person’s capacity or conduct (including its effect on the safety and welfare of
other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”2
The Applicant’s Evidence and Submissions
Mr Sione Vai
[6] Mr Vai was employed by ALDI as a Warehouse Operator on a permanent part-time
basis from 1 November 2013 until his dismissal on 1 December 2017. He received a warning
on 22 June last year about a safety breach but this was not related to his termination. He said
he was well liked and respected by other staff at the Distribution Centre “… and the
allegations put forward for my termination are out of character as to how I conducted myself
under normal circumstances, at work or outside of work.”3
[7] Mr Vai was told about the Christmas party, which was to be held at the Brownstone
Micro Brewery at the Atura Hotel in Dandenong, by his Section Leader. He was then given a
written invitation and was required to complete a form to confirm he was attending. He
understood the party was organised by the Section Leaders at the Distribution Centre, and not
the Managers, but was approved by ALDI. He also understood it was not an official ALDI
function but that it was paying for it. The employees attending were not given any direction or
guidance about expected standards of behaviour in advance of the function.
[8] Mr Vai walked to the Hotel as he lives nearby. He was with a colleague from work,
Mr Rohan Chand, who had travelled to his house and they walked to the Hotel together. There
were about 60 employees in attendance at the party, together with about six Section Leaders.
However, there were no Managers in attendance and there were no official speeches or other
presentations made during the evening, and nobody appeared to be “in charge of the staff.”4
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[9] Mr Vai said that as soon as he entered the function room “some hotel staff were
looking at me,”5 and he believed this was because of his size and appearance. He then said,
“As the night moved on I had consumed a fair amount of alcohol and was just enjoying
myself.”6 At one point he went to get three glasses of beer but was told by the bar staff he was
now limited to one glass at a time. He was confused by this as he had seen other employees
ordering handfuls of drinks. He went and asked his Supervisor what was going on and said he
told him there was no reason why he should not have been given the three beers.
[10] The bar staff then told him he could not have another drink and he would no longer be
served. He became agitated in response and kept on asking for a drink. One of the bar staff
then said, “You are not listening, you coconut.”7 Mr Vai said, “[t]he word ‘coconut’ was a
racial insult because I am an Islander,”8 and he was offended by what had been said to him.
[11] During the rest of the evening other employees, including some Section Leaders,
continued to get drinks for him. However, he became increasingly agitated and decided it was
better if he left. This was because he believed he was being treated differently to others, and
had been referred to as a “coconut.” He rang his cousin and asked him to come and pick him
up and he then left with Mr Chand in his cousin’s car. He was not escorted from the venue
and could not recall what time it was when he left. He also could not recall being involved in
any physical violence toward any other person at the Hotel.
[12] On the following Monday, 27 November, he received a text message from his head
Supervisor, “Monique,”9 informing him that he had been suspended from work. He was on an
RDO on that day. On Wednesday, 29 November, he was asked by Mr Eric Schreiber, the
Logistics Manager, to attend a meeting with him and “Rohan,” 10the Transport Manager. He
attended and was told about the allegation that he had thrown a glass of beer during the course
of the evening. He was also told there was CCTV footage of the incident, however, he was
not shown the footage at that time. He indicated in response that he could not recall the
incident, but “… if I did throw it I would not have taken deliberate aim at anybody.”11
[13] Mr Vai said he was told that ALDI had carried out an investigation into what had
occurred, but he was not shown any written accounts of any interviews that took place.
However, some of the witness statements were read out to him. He was then asked to attend a
further meeting on 1 December, and Mr Schreiber again went through the allegations. Mr Vai
repeated that he could not recall throwing a glass at anybody, but said that the bar staff had
directed racist comments toward him during the course of the evening. He also told Mr
Schreiber that he was only listening to one side of the story. After a brief break in the meeting
he was then told his employment was going to be terminated. A payment in lieu of notice was
then deposited in his bank account, but at no stage did he receive a letter of termination.
[14] Mr Vai acknowledged in cross-examination that prior to attending the Christmas party
he had been watching a rugby match on television with his uncle, and they had both drunk
some kava. He also acknowledged that after viewing the CCTV footage during the course of
the proceedings “it looks like”12 he had thrown a pot of beer in a horizontal direction, and it
had hit the wall opposite, or a lamp next to the wall. However, he denied his conduct had put
anyone at risk. He also said the incident had not occurred while he was at work.
[15] He also indicated in cross-examination that he had previously worked in the security
industry, and would not regard such behaviour as responsible or socially acceptable as it could
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put people in danger. He also acknowledged that when he spoke to Mr Wilde at the Christmas
party he did not tell him that the bar staff had used racist or discriminatory language towards
him. He was also unable to recall the conversation with Ms Nicoll when she said he told her
about it being his Christmas party, and he being able to drink what he wanted. He also could
not recall leaving the Hotel shortly after the glass was thrown.
[16] He also acknowledged that when he told Mr Schreiber that the bar staff had called him
“coconut man”13 this was the first time he had mentioned this to anyone. He also indicated in
re-examination that after he was stopped by the bar staff from getting a drink other employees
“from my section and the section leaders that know me”14 continued to get drinks for him.
Mr Vai’s Submissions
[17] Mr Vai submits that this “is an unusual usual case,”15 given he has no memory of the
events relied upon as the basis for his dismissal. He has also not received any written advice
of his termination, and had not previously seen the Termination Advice Form referred to in
ALDI’s F3 Employer Response document.
[18] He continues to submit that the allegations about his behaviour appear to be confined
to an allegation that only the contents of the glass were thrown. It also does not appear to be
asserted that the beer hit anyone. However, he has no actual recollection of the incident and is
therefore unable to give any evidence about it. He also submits that the reliability of the
evidence of other witnesses may also be affected by the consumption of alcohol.
[19] He also submits that the evidence does not establish what actually occurred,
particularly given the reaction of Ms Nicoll on the CCTV footage, and the absence of any
sound on that footage. He also makes reference to the content of the email sent to Mr
Schreiber by Mr Dunlop. There were also a number of things happening at the time, including
the glass that was dropped by Mr Dunlop and the immediate reaction to this from others in the
room. Mr Vai was also agitated at the time because he had been refused service by the bar
staff, and a racial slur had been directed at him. It is submitted in response that his behaviour
in all the circumstances was simply a lapse or “an instance of simply aberrant behaviour that
justifies any description.”16
[20] In his submission the fact that he was racially abused by the bar staff and treated in a
demeaning manner is of particular relevance. This “provocation is an ameliorating factor”17
that should be taken into account, and he refers to the decision in Tenix v Fearnley18 which
found that provocation can be a relevant factor in judging the behaviour of an employee. In
terms of whether the racial slurs were actually made during the course of the evening Mr Vai
submits his evidence should not be dismissed simply because it was not corroborated. It was
not challenged in cross-examination and there is no evidence indicating the racial comments
were not made. In addition, the fact he did not complain about the comments at the time does
not mean they were not made to him.
[21] He also submits that ALDI must take some responsibility for the alleged misconduct,
given it occurred while he was intoxicated, as it paid for the cost of the function and the
supply of food and alcohol.19 In this context Mr Vai refers to the decision in Keenan v
Leighton Boral Amey Joint Venture (‘Keenan’) at [133],20 which he submits involved similar
circumstances. However, he submits it can also be distinguished from the present matter in
that his behaviour was not an intentional act, as indicated by the content of the email sent by
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Ms Nicoll to Mr Schreiber. He also emphasises that the employee’s dismissal in Keenan was
considered to be “harsh” because the conduct was unrelated to the workplace, and it was not
considered that there would be any ongoing consequences at work as a result of the conduct.
[22] Mr Vai also submits that his conduct involved an isolated instance, which was similar
to the circumstances in Keenan. His consumption of alcohol also had much to do with what
occurred, and should be considered to be a mitigating factor. He again refers in this context to
the decision in Keenan when Hatcher VP stated:
“[132] It is clear, I consider, that Mr Keenan’s conduct was the result of him becoming
intoxicated by alcohol at the Christmas function. That is itself a mitigating factor. I do
not mean to suggest by this that Mr Keenan can divest himself of responsibility for
what occurred because of his state of intoxication. Mr Keenan should have exercised
greater control over his consumption of alcohol in order to ensure that he was able to
control his behaviour and comply with LBAJV’s policies at what was an official work
function. However, it is the nature of alcohol that it tends to induce a loss of self-
restraint and a sense of responsibility. The extent of this effect differs from person to
person, but it obviously had a significant effect in Mr Keenan’s case.”21
[23] However, it is also acknowledged that Mr Vai has to bear some responsibility for
becoming intoxicated, a situation which was contributed to by the fact he had been drinking
prior to attending the Christmas function.
[24] He also submits that the Christmas party should not be considered to be an official
ALDI function, and therefore his conduct cannot constitute a rejection of his employment
contract. It was organised by the Section Leaders and no Managers attended and he points to
the absence of “anything like managerial control.”22 Instead “the boss”23 has simply agreed to
pay “for the beer and wine and whatever else”.24 The employees who attended the function
were also not in uniform.
[25] Mr Vai relies on the decision in Rose v Telstra Corporation Limited (‘Rose’)25 in this
context and submits that it is relevant to have regard to the nature of the event; the timing of
the incident; whether there was any prior arrangement about responsible service of alcohol;
whether any instructions were given to employees about appropriate standards of behaviour;
and whether anyone was acting with managerial responsibility during the evening. He
submits, in conclusion, that if it is not considered to be a work related function then he cannot
have acted in breach of ALDI’s policies or his employment contract.
[26] He also submits that there is no evidence of any adverse publicity attaching to ALDI
as a consequence of what occurred, and there is no evidence of any express or implied breach
of his contract of employment, and the behaviour cannot be said to have crossed a line that
justified his employment being terminated. He submits instead that what occurred was “a low
level matter”26 that did not result in any damage to ALDI’s interests.
[27] However, he submits in the alternative that if it is considered to be a function
associated with his workplace then ALDI failed to comply with its own policies because he
has been treated differently as a result of drinking alcohol at “an outside function,”27
compared to how he would be treated if found to have been drinking at the work site.
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[28] It is also submitted that ALDI has not demonstrated how Mr Vai has breached his
employment contract. Firstly, there is no evidence of serious damage being caused to the
employment relationship, or to ALDI’s interests. Unlike the circumstances involved in Rose
there is nothing that directs an employee’s attention to the consequences associated with the
conduct outside of work. He also submits there is nothing that points to the fact that an
employee can be held responsible by ALDI for their own “conduct 24/7, 52 weeks of the
year.”28 In his submission there were actually no limits on his behaviour at the function in
terms of the impact on the employment relationship, given it was not connected to his work.
The Employee Handbook and the Code of Conduct, relied upon by ALDI, were only directed
to circumstances involving the work site, and the normal work environment, and if they were
intended to have wider application then this should have been made clear to employees.
[29] He also submits that it is necessary to consider whether ALDI had entered into any
arrangement with the venue about the responsible service of alcohol. The evidence also makes
clear that there were no instructions or direction given to employees in advance of the
function about what standards of behaviour were considered to be appropriate.
[30] Mr Vai continues to submit in the alternative that if the alleged behaviour was found
to have occurred then it did not warrant the termination of his employment, and the decision
to dismiss him was disproportionate to the gravity of the conduct involved. There were clearly
other options available to ALDI. He could have been given a final warning. In addition, other
employees, including one of the Section Leaders, had been complicit in obtaining drinks for
him after he was refused service by the bar staff. He was also not provided with any detail
about what was alleged to have happened in his initial meeting with Mr Schreiber and, as a
consequence, he was not in a position to be able to provide an appropriate response at that
time. He was also not provided with a letter of termination.
[31] He submits, in conclusion, that it has not been established that there was a valid reason
for his termination that can be said to be sound, well-founded or defensible. He was also not
given an adequate opportunity to respond to the reasons for his dismissal.
[32] Mr Vai also submits that his length of service should have been given more
consideration, and this again highlights the lack of proportionality in terms of the decision to
dismiss him. He also points to the fact that no significant ongoing consequences for ALDI
have been identified as a consequence of his behaviour.
[33] In terms of remedy he does not seek to be reinstated as he has been able to obtain
employment elsewhere. However, he seeks an amount of compensation equivalent to
$32,442.80. This is based on a view that he would likely have continued in employment for a
further period of two years. Some deduction has been made on the basis that he has mitigated
his losses by obtaining work elsewhere, however, he rejects the suggestion that a significant
reduction in the amount of compensation should be made on account of his conduct.
The Respondent’s Submissions and Evidence
Mr Erich Schreiber
[34] Mr Schreiber is employed as a Logistics Manager with ALDI and has responsibility
for the Dandenong region. Mr Vai worked in the Distribution Centre at Dandenong and
reported to the Goods In Section Leader. The Section Leaders report to Mr Schreiber. All
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employees, including Mr Vai, are required to comply with the ALDI Employee Handbook,
which contains various policies and procedures that are intended to regulate employee
conduct. This obligation is also set out in each employee’s employment contract and
reiterated in the job descriptions provided to them. Mr Vai signed the acknowledgement of
receipt in the Employee Handbook on 2 December 2013.
[35] Mr Schreiber’s witness statement made reference to the following extracts from the
Code of Conduct contained in the Employee Handbook:
“Section 2 – CODE OF CONDUCT
PRINCIPLES
High standards of behaviour and performance are necessary so that a harmonious and
safe working environment can exist. It is expected that ALDI employees at all levels
will act in a responsible manner towards other employees, customers, visitors and
contractors.
…
Personal Behaviour
All employees are expected to conduct themselves in a professional and socially
acceptable manner e.g. threats, abuse, bullying, physical or verbal violence are not
permitted. Provocation will not be accepted as an excuse.
…
Safety Procedures
… Any employee who disobeys any safety procedures or instruction, or who acts in an
unsafe manner towards themselves or their fellow employees may be summarily
dismissed.”29
[36] He also makes reference to the safety procedures in the Code of Conduct which state:
“Aldi is fully committed to, and takes responsibility for, the health and safety of all
employees at work. However, it is also the responsibility of every employee to work in
a safe and responsible manner, thereby ensuring a safe work environment for all. Any
employee who disobeys any safety procedures or instruction, or who acts in an unsafe
manner towards themselves or their fellow employees may be summarily dismissed.”30
[37] Mr Schreiber continued to state that ALDI organises a Christmas party for the
Warehouse Operators at the Dandenong Distribution Centre each year. It is organised by the
Section Leaders and paid for by ALDI, and the Warehouse Operators and Section Leaders are
the only employees who attend. It is considered to be an official ALDI function and the venue
has appropriate security arrangements in place.
[38] On the morning of Monday, 27 November last year Mr Schreiber was made aware of
the alleged incident involving Mr Vai and immediately commenced an investigation into what
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occurred. He arranged to visit the Hotel later that day to view the CCTV footage, and attended
with the Logistics Manager, Mr Tony Radcliffe. The Hotel would not give him a copy of the
footage and he asked that a copy be retained in case it was required in the future. It was
eventually provided to ALDI after the directions were issued in these proceedings.
[39] Mr Schreiber said the footage shows:
“a. Mr Vai walking away from the bar holding a full glass of beer. Mr Vai was wearing
black trousers and a bright orange t-shirt.
b. Eight seconds later, another party attendee the drops a glass near the entrance to the
bar. A security guard walked towards the person involved.
c. Mr Vai is visible at the top of the screen, standing next to and apparently talking to a
person seated at a table. While his head is not visible, you can see his body and his
bright orange shirt.
d. After five seconds elapse, Mr Vai throws a full glass of beer past the heads of
several employees who are seated at a table in between Mr Vai and the entrance to the
bar. A glass of beer hits a lamp and sprays over the seated employees, the lamp, the
wall, and other people standing nearby.
e. The security guard turns around to assess what had just happened. Several people
walked towards Mr Vai.”31
[40] Mr Schreiber said he then collected statements from employees who witnessed the
incident including Ms Leanne Nicoll, an Assistant Section Leader, and Mr John Dunlop, a
Section Leader. A further written statement was also received from another Assistant Section
Leader, Mr Ashley Wilde. Mr Schreiber said none of the Section Leaders made any reference
to hearing any racist remarks directed at Mr Vai, and none had received any complaint from
him about such behaviour.
[41] Mr Schreiber contacted Mr Vai on the following day to arrange a time to interview
him about the incident, and the interview was arranged for 29 November 2017. Mr Vai was
told he could bring a support person to the interview. Mr Schreiber said that prior to the
meeting he again attended the Hotel to view the CTTV footage as he “wanted to be certain
that it was Mr Vai who threw the glass.”32
[42] Mr Schreiber said that Mr Vai did not bring a support person to the meeting and asked
why he had been suspended. He was told that an allegation had been received about his
conduct at the Christmas party, and his suspension was normal process to allow for the
allegation to be investigated. Mr Schreiber then told Mr Vai that it was alleged he had
conducted himself in an unsociable manner during the Christmas party and had thrown a beer
glass toward a security guard and other ALDI employees, including two Section Leaders. Mr
Vai did not say anything initially in response.
[43] He then asked him what happened at the Christmas party and Mr Vai explained that
after a period of time the bar staff had refused to give him another drink. He also said they
began calling him a “coconut man” and after that he became a bit louder because they had
refused to serve him. He also indicated that three of the Section Leaders had spoken to him
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about his behaviour, and had tried to calm him down. However, he did not tell the Section
Leaders that the bar staff had directed a racial slur at him. He also said that he did not
remember doing anything wrong and thought it was his friend, Rowan Chand, who had
thrown the glass towards the security guard.
[44] Mr Schreiber said that at the conclusion of the meeting he told Mr Vai that once he
had completed his investigation he would contact him again to arrange a final meeting and
there was the potential for the outcome of the process to involve disciplinary action.
[45] Mr Schreiber then interviewed Ms Jana Papuni, who is employed as a Warehouse
Palletiser at the Distribution Centre. She told him she was sitting at a table with a colleague
when everyone started cheering. She turned around and saw that Mr Dunlop had dropped a
glass of beer on the floor behind her, and seconds later a glass of beer flew in front of her
face. She said the glass was thrown by Mr Vai.
[46] Mr Schreiber then returned to the Hotel again, following Mr Vai’s suggestion that Mr
Chand had thrown the glass. After again reviewing the footage Mr Schreiber was certain it
showed the glass being thrown by Mr Vai. He also interviewed Mr Chand on 30 November,
who told him he had dropped a glass on the ground outside the venue, but had not thrown a
glass at anyone.
[47] Mr Schreiber then concluded that there was “irrefutable evidence”33 that Mr Vai had
become intoxicated at the Christmas party, and had thrown a full glass of beer past two
employees who were sitting at a table. The glass then broke when it hit a lamp and covered
other employees with beer. In his view his behaviour amounted to serious misconduct and
breached a number of ALDI’s policies and procedures. His investigation also concluded that
Mr Vai did not tell anyone during the course of the evening about the claim that the bar staff
had made racist or discriminatory comments to him.
[48] On 30 November Mr Schreiber telephoned Mr Vai to arrange a further meeting. He
told him that he had completed his investigation into the alleged incident, and the meeting
was intended to provide him with an opportunity to respond to the findings of the
investigation. He was invited to bring a support person and Mr Vai attended with Ms
Monique Elers.
[49] Mr Schreiber said Mr Vai told him that he was a happy person, but the bar staff had
upset him and called him a coconut. He also indicated that he was responsible for his
behaviour, “but I do like to drink a bit of kava.”34 Mr Vai also told him that he could not
remember throwing the glass. Mr Schreiber then took Mr Vai to the Employee Handbook and
the Code of Conduct, and told him that if he had been racially abused during the course of the
evening then he should have brought that to the attention of one of the Section Leaders.
[50] Mr Schreiber then took a break from the meeting to consider Mr Vai’s responses and
when he returned told him that his employment had been “… terminated because he threw a
glass after having been spoken to by three Section Leaders.”35 He also noted “… that as per
company policy, provocation is not accepted as an excuse for physical violence.”36
[51] Mr Schreiber also acknowledged in cross-examination that he was a not a witness to
the events at the Christmas party, and was only able to corroborate any of the statements
provided by the vision he had seen on the CCTV. He also indicated that the decision to
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terminate Mr Vai’s employment was based on what happened at the Christmas party, and not
on any other issues to do with his behaviour or performance. He also acknowledged that the
Code of Conduct did not specifically state that it applies outside of the workplace.
[52] However, he also indicated that he believed the circumstances involved in drinking
alcohol at a Christmas function were different to those involved in drinking on the premises at
work. He continued to state, “If I have to now give an opinion, it’s on the premises, we are
dealing with heavy machinery and we would be talking a different outcome if they are drunk
or under the influence within the premises at work. While we are celebrating a good year is a
completely different thing. We are there to celebrate. We are there to - you know - and we are
all adults. We would know our responsibility. That’s why - so the difference. If we are
influenced - under the influence of alcohol or drugs at the workplace, the outcome of an injury
would be way - you know, it would be potentially devastating or fatal. We can tolerate that
and in a function that you are celebrating the good year, well, you know, it’s a completely
different scenario, therefore, in my opinion.”37
[53] He also denied that ALDI had supplied unlimited alcohol at the function and there was
instead a limit on the amount to be served. The venue also was required to adhere to the
responsible service of alcohol. However, he acknowledged that over a period of three hours
people may become intoxicated. He also believed the Christmas party to be an official
function because, “It’s an ALDI organised Christmas party for the employees for the section
leaders to celebrate with the operators their year.”38 He was also not aware that any
instructions had been provided to employees in advance of the function about the standards of
behaviour that were expected.
[54] He also indicated in cross-examination that when he attended the Hotel to view the
CCTV he mentioned to the Manager about Mr Vai claiming to have been racially abused, but
she said that no mention had been made about anything like that, and no complaint had been
made by anyone. He also made the same enquiries of the Section Leaders but they had no
knowledge of it either.
Ms Leanne Nicoll
[55] Ms Nicoll is an Assistant Section Leader at the Dandenong Distribution Centre and
since taking on that role has been to most of the Christmas parties held with the Warehouse
Operators. The Section Leaders are expected to go to the party in order to oversee the event.
[56] She arrived at the party at the Brownstone Micro Brewery at around 6.30 p.m. At
around 8.30 p.m. she noticed Mr Vai appeared very agitated and was causing a commotion.
She asked what was going on and was told by colleagues that he was intoxicated and the bar
staff had “cut him off.”39 She went over to him and said words to the effect of that maybe he
had enough to drink tonight, but he responded by indicating that it was not for the bar staff to
tell him when he had had enough, and he was entitled to drink at his Christmas party. She
suggested that if he wanted to continue drinking he should go to a different venue, but was
unable to reason with him, and he walked away. Ms Nicoll said that at no time during this
discussion, or at any time during the night, did he say that someone had called him “a
coconut,” or had used any other racist term.
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[57] Ms Nicoll said that approximately 10-15 minutes later she noticed another person,
who was not an ALDI employee, with Mr Vai. She asked a colleague who he was, and was
told he was a friend of Mr Vai’s. She then saw this person at the bar trying to get a drink.
[58] At approximately 8.45 p.m. Ms Nicholl said she was talking to another Section
Leader, Mr John Dunlop, and other colleagues when Mr Dunlop accidentally dropped his
class which smashed on the ground. The noise attracted attention and other people reacted
with yells and cheers. Almost immediately afterwards she saw Mr Vai standing to her left,
about five metres away, and saw him throw something in her direction. She then found herself
covered in beer and saw a broken glass on the floor. She then realised he had thrown a glass
of beer. She immediately made eye contact and yelled at him, “Are you for real?”40
[59] Mr Vai was immediately taken outside. She then left the party shortly after 9 p.m.,
after being told by other colleagues that the venue had shut the bar and the party was over.
She drank 2 glasses of wine during the evening.
[60] On 27 November Ms Nicoll was asked to by Mr Stephen Smith to send an email to
himself and Mr Schreiber setting out what she knew about the incident at the Christmas party.
She sent the email later that morning.
[61] Ms Nicholl also acknowledged in cross-examination that none of the Managers from
the Distribution Centre attended the party. She also acknowledged that some of the Section
Leaders who attended left during the course of the evening, although “[t]here were still two, if
I recall rightly, that were still there that night.”41 She also acknowledged in cross-examination
that she did not think the glass of beer was intentionally thrown toward her but, “I don’t know
what it was or who it was directed at. I’m really not sure, that’s why I was very shocked to
wear it.”42
[62] She also stated that she did not know Mr Vai very well, but as far as she was aware his
behaviour at the Christmas party was out of character. She had also heard that other
employees were continuing to supply him with alcohol after he had been denied access by the
bar staff, but she had no first-hand knowledge of this.
Mr Ashley Wilde
[63] Mr Wilde is an Assistant Section Leader at the Dandenong Distribution Centre. He
had previously worked in the Goods In team and Mr Vai reported to him at the time. They
had a good relationship, and he had helped Mr Vai with some personal issues in the past.
[64] Mr Wilde attended the party at the Brownstone Micro Brewery at the Hotel and
understood his role was to make sure the event ran smoothly, and to take action if employees
were not behaving appropriately. He arrived at approximately 5.30 p.m. and was aware the
party was being held in a room at the Hotel that was closed to members of the public.
[65] Mr Wilde spoke to Mr Vai at an early point in the evening, but at around 8 p.m. he
noticed he was becoming boisterous with the bar staff. He appeared to be intoxicated and after
a discussion with another colleague it was agreed they would talk to Mr Vai. They were also
told at around the same time by the Bar Manager that Mr Vai was abusing staff and was
intoxicated. He also said if his behaviour did not improve he would be removed from the
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venue. Mr Wilde was also aware that the bar staff had stopped serving multiple drinks and
would only give each person one drink.
[66] Mr Wilde then spoke to Mr Vai and told him he needed to calm down and act
appropriately or he would be asked to leave. He appeared upset and told him that the bar staff
would not serve him. Mr Wilde then told him to go and get one drink and to calm down,
which he appeared to do.
[67] Mr Wilde said he then left the party around 30 minutes later. He spoke briefly to Mr
Vai before leaving, and said that at no time did Mr Vai tell him that anyone had used racist or
discriminatory language towards him. Mr Wilde also said he did not hear anyone refer to Mr
Vai as “a coconut.”43
[68] On 27 November he was requested by Mr Rowan Williams to forward an email setting
out his recollection of the events, which he did immediately.
ALDI’s Submissions
[69] ALDI submits that the Commission is entitled to rely on the interview records attached
to Mr Schreiber’s witness statement. While they are hearsay they were prepared for the
purposes of the investigation into Mr Vai’s behaviour and as such are admissible. In any case
it continues to submit that there is no evidence to contradict the evidence of Ms Nicholl about
the glass and its contents being thrown. It is “incontrovertible,”44 based on the CCTV footage,
that Mr Vai threw both the beer glass and its contents.
[70] It continues to submit that there is no dispute about the fact Mr Vai was not happy
about being denied further drinks by the bar staff. He has also acknowledged that he did not
tell any of the Section Leaders during the course of the evening that he had been subjected to
a racial slur. He also has no recollection of the relevant events. ALDI also submits that it does
not rely only on the evidence of Ms Nicholl, and points to the interview notes from Ms
Papuni, which also make clear that a glass of beer and its contents flew between her and a
colleague, who were seated at a table near where the glass smashed on the wall. It also
submits that none of this evidence has been contradicted.
[71] It continues to submit that ALDI had a “valid reason” to dismiss Mr Vai. While the
Employee Handbook did not apply in all circumstances, it did apply in this context because
there was a sufficient connection between Mr Vai’s conduct and his employment. It makes the
following points in this context. It was a work Christmas function. It was paid for by ALDI. It
was organised by ALDI Section Leaders at the direction of an ALDI manager. It was
exclusively for ALDI employees, and was held in a private room at the Hotel that was only
accessible to those employees. The Section Leaders attended to ensure that the employees
remained within acceptable bounds of behaviour. Their role in this context was evidenced by
the fact that three of them spoke to Mr Vai at different times during the course of the evening
in an attempt to moderate his behaviour. There was also a security guard in attendance. It
continues to submit that the question of whether ALDI had a “valid reason” is emphasised
when it is considered what might have been the consequences if the glass and its contents had
actually hit someone at the party.
[72] It also submits that the scope of the Employee Handbook is “not limited to the four
corners of the employee’s premises,”45 but applies to any behaviour that can impact on other
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colleagues at work. It also submits that the drug and alcohol policy was not intended to apply
in the context of a Christmas party. It obviously prohibits drinking on company premises, but
it is a distraction to suggest it applies beyond that context. It continues to submit that an
Employee Handbook is not required to be able to understand that Mr Vai’s behaviour was
“completely inappropriate”.46
[73] It continues to submit that his conduct was sufficiently connected with his
employment to warrant the disciplinary action, and in this context relies on the decision in
Rose.47 It submits that the conduct must be such that when viewed objectively it is likely to
cause serious damage to the relationship between the employer and the employee. It again
reiterates that the consequences of Mr Vai’s behaviour could have been much more
significant, and ALDI cannot be sure he will not act in that way again. To that extent the
relationship between ALDI and Mr Vai has been seriously damaged. It continues to submit
that the suggestion that “anything goes”48 at a function like this must be rejected. There was
instead in this case a level of aggression that constituted misconduct and justified Mr Vai’s
termination.
[74] It also submits that Mr Vai’s evidence about the racial slur must be treated with
caution, given his “less than perfect”49 recollection of the night, and the lack of any
corroborating evidence. In any case it submits it cannot be an excuse for his behaviour even if
it was the cause of what occurred.
[75] It also submits that the allegations were explained to Mr Vai by Mr Schreiber, who
also told him that an investigation was being carried out into what occurred. He was then
provided with an adequate opportunity to respond. As part of this process Mr Schreiber spoke
with Mr Chand, and with the Section Leaders who were present on the evening. He also
viewed the CCTV at the Hotel on 3 occasions in order to confirm what it showed. It also
submits that Mr Schreiber’s evidence makes clear that he weighed up all of the circumstances
concerning Mr Vai’s behaviour before the decision was made to terminate his employment. It
also submits that ALDI took a compassionate approach toward him when it decided to
provide him with payment in lieu of notice, and it should not be criticised for having done so.
[76] In its submission the decision in Keenan50 can also be distinguished on the basis that it
involved unlimited service of alcohol. In the present matter there were instead restrictions on
the service of alcohol and this was, in large part, why Mr Vai became annoyed when he was
denied service by the bar staff.
Consideration
[77] As indicated at the outset in coming to a decision in this matter the Commission is
required to consider whether Mr Vai’s dismissal was ‘harsh, unjust or unreasonable.’ What is
required in that context was considered in the often quoted decision in Byrne v Australian
Airlines Ltd51 when McHugh and Gummow JJ held:
“...It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
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consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”52
[78] Vice President Ross, as he then was, in Rose53 restated the above proposition, and also
added (references omitted):
“In my view whether there has been a ‘fair go all round’ is a matter which I think is
relevant and hence I am to have regard to it determining whether the termination was
harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be
taken into account.”54
[79] I have had regard to these authorities in coming to a decision in this matter. As
indicated, the Commission is also required to take into account each of the considerations in
s.387. I now turn to deal with the application having regard to each of those matters.
(a) whether there was a valid reason for the dismissal related to the person’s capacity or
conduct (including its effect on the safety and welfare of other employees)
[80] It is noted at the outset that the judgement of Northrop J in Selvachandran v Peteron
Plastics Pty Ltd55 is often referred to in considering what constitutes a “valid reason.” His
Honour came to the following conclusions:
“The reasons of an employer for terminating the employment of an employee are solely
within the knowledge of the employer. The employer may state a reason but that
reason need not be the actual reason nor need it be the only reason. This is the rationale
for the onus of proof provisions contained in s 170EDA.
Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not
give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries
shows that the word ‘‘valid’’ has a number of different meanings depending on the
context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning
given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable,
sound, defensible: Effective, having some force, pertinency, or value.’’ In the
Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid
reason’’
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same
time the reason must be valid in the context of the employee’s capacity or conduct or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must ‘be applied in a practical, commonsense
way to ensure that’ the employer and employee are each treated fairly…”56
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[81] In addition, in Parmalat Food Products Pty Ltd v Wililo57 the Full Bench came to the
following conclusion:
“The existence of a valid reason is a very important consideration in any unfair
dismissal case. The absence of a valid reason will almost invariably render the
termination unfair. The finding of a valid reason is a very important consideration in
establishing the fairness of a termination. Having found a valid reason for termination
amounting to serious misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating factors are present that a
conclusion of harshness is open.”58
[82] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia
Post59 (‘Australian Postal Corporation’) also provides a useful summary of the approach to
be taken in weighing the factors to be considered:
“Reaching an overall determination of whether a given dismissal was “harsh, unjust or
unreasonable” notwithstanding the existence of a “valid reason” involves a weighing
process. The Commission is required to consider all of the circumstances of the case,
having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of
the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly
be brought to account as weighing against a finding that dismissal was a fair
and proportionate response to the particular misconduct.”60
[83] It follows from these authorities that a “valid reason” is one that is “sound, defensible
and well founded,” as opposed to one that is capricious, spiteful or prejudiced. It must also be
“valid” in the context of both the employee’s capacity or conduct and the operational
requirements of the business. The test must also be applied in a practical, common sense way
to ensure the parties are treated fairly in circumstances where each has rights and privileges,
but duties and obligations as well.
[84] As the decision in Australian Postal Corporation also makes clear consideration of
“valid reason” inevitably involves weighing different considerations, including the conduct
involved and any other mitigating or other relevant matters. I have sought to adopt the
approach of these authorities in coming to a decision in this matter.
[85] I am satisfied that in considering whether ALDI had a valid reason to dismiss Mr Vai
the Commission is required to do a number of things. It is first necessary to establish what
occurred on the evening of 25 November last year. It is then necessary to come to a
conclusion about the significance of what occurred.
[86] The Commission is then required to consider whether the function can be considered
to have been work-related in that it was sufficiently connected to Mr Vai’s employment to be
the subject of legitimate employer supervision, and so normal standards of employee
behaviour could be expected to be observed as a consequence.
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[87] However, if the function is not characterised in that way, and it was instead an “out of
hours” event, then it is necessary in terms of the decision in Rose to consider whether the
circumstances involved a sufficient connection between the conduct and the Applicant’s
employment to bring it within the scope of ALDI’s legitimate supervision.
[88] I turn first to consider the evidence about what actually happened on the evening of 25
November. Mr Vai indicated in cross-examination that he had been drinking kava that
afternoon while watching television with his Uncle. No evidence was provided about how
much he had to drink during this time but clearly he had consumed some alcohol before
arriving at the Christmas party. He arrived at the Hotel after walking from his home with
another work colleague who had met him there. His evidence makes clear he then consumed a
significant amount of alcohol to the extent that he has no recollection of the incident that led
to his dismissal. It is also clear from his own evidence that he became annoyed with the bar
staff, who initially refused his request to obtain more than one drink at a time, and then
refused to serve him at all. However, other employees at the party continued to obtain drinks
for him, and this included on at least one occasion a Section Leader, Mr Ashley Wilde. This
was acknowledged in Mr Wilde’s evidence however, he said he did so in an endeavour to try
and calm Mr Vai down.
[89] Mr Vai was also spoken to by other Section Leaders at various times during the
evening. The statement provided by Mr Wilde indicates he spoke to Mr Vai at around
8.10p.m. in an effort to calm him down as he was becoming “boisterous”.61 Mr Wilde said the
conversation ended on the basis that Mr Vai acknowledged he needed to act appropriately. Ms
Nicholl also spoke to him. Reference was also made to his displeasure at being restricted or
denied drinks by the bar staff.
[90] Mr Vai also states that he was upset because someone among the bar staff directed a
racial slur at him. It is acknowledged, in response, that any such behaviour is totally
unacceptable. However, in attempting to determine what actually happened on the evening it
seems unusual that Mr Vai made no reference about this to anyone during the course of the
evening, despite the various discussions he had with the Section Leaders and with others at
the function. He was also quite open in his complaints about the restrictions placed on him by
the bar staff in obtaining drinks. There is also no evidence of anyone else hearing the alleged
comments. The first time that any mention was made about them was only when Mr Vai was
interviewed by Mr Schreiber on the following Monday morning.
[91] It has already been made clear that any such comments are totally unacceptable.
However, the available evidence makes it difficult to establish whether the comments were
actually made at all, or whether they may instead have been raised by Mr Vai in his
discussions with Mr Schreiber in an attempt to justify his behaviour.
[92] I turn now to consider the alleged incident that led to Mr Vai’s dismissal. He firstly
has no recollection of the incident at all. He also provided no other evidence about what
occurred, although the submissions provided on his behalf question whether a glass of beer
was thrown, or only the contents of the glass. Regardless, it is submitted that it can only have
occurred due to a momentary lapse or “an instance of simply aberrant behaviour that justifies
any description.”62
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[93] ALDI relies on the evidence of Ms Nicoll, who describes a glass and its contents being
thrown in her direction and smashing on a wall nearby. Her surprise at what occurred was
emphasised by her immediate reaction. Her witness statement indicates she immediately
stared straight back at Mr Vai and said “[a]re you for real?”63 It also relies on the statement of
Ms Papuni, who said the glass was thrown between her and a colleague seated at a table
nearby. ALDI also makes reference to the CCTV footage obtained from the Hotel. While it is
not necessarily conclusive in terms of what was thrown it makes clear that something was
thrown towards Ms Nicoll in the way she describes. I am also satisfied that her evidence was
not seriously challenged in cross-examination.
[94] I am satisfied, in conclusion, that the available evidence indicates that Mr Vai threw a
glass of beer and its contents in the general direction of Ms Nicoll and some other employees,
narrowly missing them and smashing into the wall behind them. No one was injured, but his
actions had the potential to cause significant injury if someone had been hit in the face, for
example, by the full glass of beer. The evidence of Ms Nicoll also indicates that the incident
was generally considered significant in that shortly after it occurred the bar was closed and the
party ended.
[95] I am satisfied as a consequence that if the incident involving Mr Vai can be said to
have occurred in a work context then it provided a valid reason for his termination.
[96] It is therefore necessary to now consider whether the Christmas party can be said to
have been a work function. Mr Vai submits it should not be considered in this way, however,
ALDI has a different view. I have had regard to the decision in Keenan in this context, which
also involved a work Christmas function held at a Hotel. However, the circumstances in that
matter also involved conduct that occurred after the Christmas party, when some of those
present decided to “kick on,” as it might be described colloquially, and headed to an upstairs
bar where further drinks were had. Hatcher VP concluded in response to this situation at
[101]:
“[101] I do not consider that conduct which occurred at the upstairs bar can be said to
be in connection with Mr Keenan’s employment. The social interaction which
occurred there was not in any sense organised, authorised, proposed or induced by
LBAJV. Those who gathered there did so entirely of their own volition. It was in a
public place. There was nothing in LBAJV’s Code of Conduct or relevant policies
which suggested that they had any application to social activities of this nature. Mr
Macourt gave evidence that he expected that LBAJV’s standards of behaviour would
apply until all employees were safely home that night, but there was no evidence that
any such expectation was communicated to employees or that employees generally had
any understanding that this expectation existed. Mr Keenan’s conduct in the upstairs
bar was merely incidental to his employment.”64
[97] However, the Vice President did not take issue with whether what occurred at the
Christmas function could be the subject of legitimate supervision by the employer. He also
noted that Mr Keenan had not contested this proposition when he concluded at [113]:
“[113] That leaves for consideration Mr Keenan’s conduct at the Christmas function
itself. Mr Keenan did not contest the proposition that what occurred at the Christmas
function could be the subject of legitimate employer supervision by LBAJV. This
implicit concession was properly made. The function was an official one which was
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organised and paid for by LBAJV, and, critically, LBAJV made it clear that
compliance with its standards of behaviour was expected on the part of those who
attended.”65
[98] However, the Vice President clearly had regard to some further issues, which were
referred to in the decision under the heading of “Organisation of the Christmas function.” In
this context he noted, firstly, that the organisation of the function was assigned to an
“Executive Team Coordinator”66 and “an Administrator”.67 He continued to indicate,
“[n]either was an employee with a managerial or supervisory status.”68 He also noted that the
Supervisors were asked to remind employees about appropriate standards of behaviour at the
function prior to it taking place, and this was done in a variety of ways. However, “[n]o
manager was tasked with supervising the overall running of the Christmas function or the
conduct of staff.”69
[99] He also concluded that there appeared to be no restriction on the alcohol served at the
function, and the evidence indicated that the attendees were able to help themselves to bottled
beer that was kept in what he described as a large “Esky type container.”70
[100] The evidence also indicated that the Applicant was never refused service of alcohol,
and beyond a certain point in the evening he was simply “serving himself with beer. Nor did
anyone remonstrate with him about his behaviour or suggest that he stop drinking or leave the
function while he was in the Endeavour Room.”71
[101] The evidence in the present matter can be contrasted with those circumstances in a
number of respects. ALDI had entered into an arrangement with the Hotel whereby it would
fund the cost of a certain amount of food and alcohol. The function was not organised directly
by a Manager, but it was organised by the Section Leaders or Supervisors at the direction of
Management, as had been the case with Christmas parties held in the recent past. A number of
Section Leaders attended the function and the evidence makes clear their presence was
intended to ensure appropriate standards of behaviour were observed and maintained. The
evidence also indicates that at least three of those Section Leaders had cause to speak to Mr
Vai during the course of the evening about their concerns with his behaviour. There is also no
evidence indicating that the judgement of any of the Section Leaders was impaired by
excessive consumption of alcohol. Both Ms Nicoll and Mr Dunlop, for example, indicated
that they had only had a couple of drinks during the course of the evening.
[102] A security guard had also been assigned to the function, and Ms Nicolls states in her
evidence that she spoke to that person on at least one occasion about her concerns with Mr
Vai’s behaviour as part of her role in attempting to maintain appropriate standards of
behaviour. The evidence also indicates that the bar staff were aware of their responsibilities in
regard to the responsible service of alcohol. They initially restricted and then prevented Mr
Vai from being served in accordance with these responsibilities. Their actions, in fact, appear
to have been a significant contributor to Mr Vai’s becoming annoyed during the course of the
evening, and him feeling he was being singled out and treated differently. It is suggested in
response that Mr Vai well might have been treated differently by the bar staff, but this was
due to the fact he was intoxicated, rather than having anything to do with his appearance
[103] In summary, while it appears that ALDI did not make a specific efforts to speak with
the employees in advance of the function to confirm what standards of behaviour were
expected, the evidence indicates that a number of steps were taken to put in place
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arrangements designed to ensure the behaviour of those attending did not get out of hand.
They can also be considered to be steps that might reasonably be expected to be taken in order
to ensure, as far as possible, that the function takes place in an orderly manner and with
appropriate standards of behaviour being observed.
[104] However, ALDI was confronted with a situation where an employee had been
drinking before attending the function, and then continued to drink on arrival to the extent
where he has no recollection of the events that ultimately led to his employment being
terminated. He also acknowledged that he was annoyed and anxious because he was not able
to obtain service at the bar. He then threw a glass of beer and its contents in the direction of
two Section Leaders and other employees. Fortunately, the glass did not actually hit anyone,
but could have done so with potentially serious consequences.
[105] I am satisfied that any employer who decides to hold a Christmas party has an
obligation to take reasonable steps to ensure appropriate standards of behaviour are
maintained, and the safety of those attending is protected. However, I am also satisfied that
any employee attending has a responsibility to act within reasonable bounds. I am not
satisfied, in response, that Mr Vai can be said to have acted in this way. It is also instructive to
compare the behaviour that led to his employment being terminated with the behaviour
involved in the matter of Keenan. Hatcher VP considered a range of behaviour in Keenan that
the employer relied on to provide a valid reason for termination. However, he was of the view
that several of those matters did not constitute a valid reason for termination. However he also
had regard to other behaviour, which he described in the following terms:
“[121] To repeat, Mr Keenan said to Ms Stokes, in a manner that was entirely
unprovoked, “What do you even do?”, and when Ms Stokes laughed in response, said
“No seriously. Who the fuck are you? What do you even do here?”. I consider that to
be, objectively speaking, aggressive, intimidatory and bullying behaviour on Mr
Keenan’s part, particularly given that Mr Keenan was an intoxicated middle-aged male
and Ms Stokes was a much younger and smaller female. The behaviour was
intentional. The robustness of Ms Stokes’ response in simply turning and walking
away from Mr Keenan does not diminish the seriousness of that behaviour. LBAJV’s
policy against bullying did not give it a definition, but on any reasonable view Mr
Keenan’s behaviour did constitute bullying (noting that we are not here concerned with
the special legislative definition of bullying in s.789FD of the FW Act).”72
[106] Hatcher VP indicated in conclusion, “I consider that this constituted a valid reason for
the dismissal.”73
[107] I do not seek to take issue with the Vice President’s conclusions in this regard, or his
views about the behaviour involved. However, I am satisfied that Mr Vai’s behaviour in the
present matter was just as significant and serious, if not more so, given the potential for
significant physical injury to have resulted. I am satisfied, in conclusion, that in all the
circumstances ALDI had a valid reason to dismiss Mr Vai.
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person
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[108] I am satisfied that it is appropriate to consider these matters together. Mr Vai’s
evidence indicates that when he was initially called into a meeting with Mr Schreiber on the
Monday morning following the Christmas party he was not aware of what he wanted to speak
to him about. This was apparently because Mr Vai had no recollection of the events at the
Christmas party. He said this initially made it difficult for him to respond, given he was not
aware of what the concerns were. I accept that this may have been the case at the outset,
however, I am also satisfied that during the various discussions that then took place with Mr
Vai he was made aware of what had occurred, and had an adequate opportunity to respond.
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal
[109] There is no indication of any unreasonable refusal by ALDI to allow Mr Vai to have a
support person present at any discussions relating to his dismissal, and he did in fact have a
support person present in some of those discussions.
(e) if the dismissal related to unsatisfactory performance by the person—whether
the person had been warned about that unsatisfactory performance before the dismissal
[110] This consideration is not relevant in the context of this matter.
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal.
[111] ALDI is obviously a large employer and can be expected to be aware of the
appropriate procedures to be gone through in dismissing an employee.
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal.
[112] The same considerations apply as indicated above in regard to sub clause (f).
(h) any other matters that the FWC considers relevant
[113] Mr Vai again relies on the decision in Keenan, and some of the matters that Hatcher
VP considered relevant to whether the dismissal of Mr Keenan was harsh, unjust or
unreasonable. Mr Vai’s submissions made reference to these in the following terms:
“a. The lack of any significant ongoing workplace consequences
b. Good employment record.
c. The isolated and aberrant nature of the conduct.
d. The fact that the applicant was intoxicated as a result of alcohol consumption at a
Christmas function when he engaged in the relevant behaviour.
[2018] FWC 4118
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e. The manner of the service of alcohol in the Christmas function, including the
respondent’s failure to exercise any real control over this (in the event that this was an
Official function)
f. The alternatives to dismissal which were proportionate to the conduct involved.”74
[114] I turn now to deal with these matters. It is noted, firstly, that in the matter of Keenan
Hatcher VP concluded that dismissal was not necessary to properly protect Ms Stokes’
position in the workforce, given Mr Keenan only had limited day-to-day contact with her, and
the lack of any indication that his comments had an effect on her ability to perform her duties.
He also noted that Mr Keenan had only received one warning previously about a relatively
obscure matter, and there was no evidence he had engaged in any similar conduct previously.
It is accepted that some of the same considerations exist in this matter. However, I am also
satisfied that ALDI was entitled to be concerned that Mr Vai might again act in a random and
unprovoked way, particularly if alcohol was involved, with possibly serious consequences.
Mr Vai would also have had an ongoing working relationship with the Section Leaders who
attended the Christmas function if he remained in employment.
[115] The Vice President also took the view in Keenan that the fact that the Applicant was
intoxicated was a mitigating factor, although this did not mean he could divest himself of all
responsibility for what occurred. However, he also noted that, “[a]n exacerbating factor in that
respect was the manner in which alcohol was served at the function.”75 He concluded by
stating that it was “contradictory and self-defeating”76 for an employer to require compliance
with normal standards of behaviour, but to not impose any controls over the service of alcohol
at the function.
[116] It follows from the decision in Keenan that the fact that Mr Vai was intoxicated might
be viewed as a mitigating factor, but it does not enable him to avoid responsibility for what
occurred. His own evidence indicated he had been drinking prior to attending the function,
and he continued to drink heavily after arriving. He also acknowledged that he was prone to
behaving erratically in such circumstances. I am satisfied, in response, that he should accept
much of the responsibility for placing himself in these circumstances.
[117] I am also satisfied that the circumstances involving the availability of alcohol in the
present matter are very different to those in Keenan. This was not a situation in which it was a
case of “help yourself” in regard to obtaining drinks. I have already referred in some detail to
the measures put in place to ensure responsible service of alcohol. I have also indicated that I
consider those steps to be reasonable. The amount of alcohol that ALDI budgeted for was also
limited, and this was not a situation where unlimited supplies were available throughout the
course of the evening.
[118] Mr Vai also submits that his dismissal was not a proportionate response, and other
alternatives could have been considered. I have obviously given consideration to these
submissions, and whether he could have been given a warning instead. However, I am not
satisfied that this would have been an appropriate response, given the circumstances involved.
It is not necessary to recount those circumstances, but they involve a full glass of being a beer
being thrown in the direction of other employees, which could have had significant
consequences if they had been hit by the glass and its contents. Fortunately, for Mr Vai they
were not. However, this does not lessen the potential significance of what occurred.
[2018] FWC 4118
22
Conclusion
[119] I am not satisfied, in conclusion, that Mr Vai was unfairly dismissed. In coming to this
conclusion I have had particular regard to whether ALDI had a valid reason to dismiss Mr
Vai. His application is accordingly dismissed.
COMMISSIONER
Appearances:
G Dircks and T Koletsos for the Applicant.
B Avallone of Counsel for the Respondent.
Hearing details:
2018.
Melbourne:
April 11.
Printed by authority of the Commonwealth Government Printer
PR608939
1 Fair Work Act 2009 (Cth) s 385(b).
2 Ibid, s 387.
3 Exhibit V1, [6].
4 Ibid, [17].
5 Ibid, [20].
6 Ibid, [22].
7 Ibid, [34].
8 Ibid, [35].
9 Ibid, 43].
10 Ibid, [44].
11 Ibid, [47].
12 Transcript, 11 April 2018, PN 135.
13 Ibid, PN 300.
14 Transcript, 11 April 2018, PN 456.
15 Submissions of Applicant, dated 26 February 2018, [3].
THE FAIR WORK COMMISSION SEAL THE
[2018] FWC 4118
23
16 Transcript, 11 April 2018, PN 963.
17 Submissions of Applicant, dated 26 February 2018, [11].
18 Tenix Defence Systems Pty Ltd v Fearnley (unreported, AIRCFB, Ross VP, Polites SDP, Smith C, 22 May 2000).
19 Submissions of Applicant, dated 26 February 2018, [18].
20 [2015] FWC 3156.
21 Ibid, [132].
22 Transcript, 11 April 2018, PN1031.
23 Ibid.
24 Ibid.
25 Print Q9292 [1998] AIRC 1592 (4 December 1998).
26 Transcript, 11 April 2018, PN 1054.
27 Ibid, PN966.
28 Ibid, PN991.
29 Exhibit A2, Attachment ES 2, p 14 and 16.
30 Ibid, Attachment ES 2, p 15.
31 Ibid, [27].
32 Ibid, [36].
33 Ibid, [64].
34 Ibid, [72].
35 Ibid, [84].
36 Ibid.
37 Transcript, 11 April 2018, PN 717.
38 Ibid, PN 750.
39 Ibid, PN 7.
40 Exhibit A1, [13].
41 Transcript, 11 April 2018, PN 503.
42 Ibid, PN 557.
43 Exhibit A4, [21].
44 Submissions of Respondent, dated 19 March 2018, [9].
45 Transcript, 11 April 2018, PN 1077.
46 Ibid, PN 1078.
47 Print Q9292 [1998] AIRC 1592 (4 December 1998).
48 Transcript, 11 April 2018, PN 1077.
49 Ibid, PN 1108.
50 Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 (‘Keenan’).
51 (1995) 185 CLR 410.
52 Ibid, 465.
53 Print Q9292 [1998] AIRC 1592 (4 December 1998).
54 Ibid.
55 (1995) 62 IR 371.
56 Ibid, 373.
57 [2011] FWAFB 1166.
58 Ibid, [24].
59 [2013] FWCFB 6191.
60 Ibid, [58].
61 Exhibit A4, [11].
62 Transcript, 11 April 2018, PN 963.
[2018] FWC 4118
24
63 Exhibit A1, [13].
64 Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.
65 Ibid, [113].
66 Ibid, [16].
67 Ibid.
68 Ibid.
69 Ibid, [21].
70 Ibid, [19].
71 Ibid, [23].
72 Ibid, [121].
73 Ibid, [122].
74 Submissions of Applicant, dated 26 February 2018, [72].
75 Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156, [133].
76 Ibid.
