Fair Work Act 2009
s.394—Unfair dismissal

Matthew Wyss
v
Omnigrip Direct Pty Ltd
(U2022/8914)

Unfair dismissal application – consumption of alcohol at work lunch – failure to follow direction and policy – valid reason for dismissal – dismissal not unfair

[1] Mr Matthew Wyss has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act).  From April 2021 until 16 August 2022, Mr Wyss was employed by Omnigrip Direct Pty Ltd (company), an engineering and construction company. Mr Wyss was dismissed for serious misconduct after the company concluded that he had allowed members of his team to consume alcohol at lunch, and had himself consumed alcohol, contrary to a management direction and company policy. Mr Wyss admits that he drank alcohol, but denies that he allowed his team to drink. He submits that his dismissal was unfair.

[2] Mr Wyss gave evidence that on 4 August 2022, his team was finishing a project for the City of Port Phillip, installing concrete islands. The crew had worked hard and were exhausted. One of the workers suggested that the team go to lunch when the works were completed. Mr Wyss then called Mr Darren Scerri, the company’s chief executive officer, and suggested that he take the team out for lunch. Mr Scerri agreed, but said that no alcohol was to be consumed. Mr Wyss’s evidence was that when he arrived at the lunch venue, he told several of the crew that the company would pay for meals, but that there was to be no alcohol. He then went inside the restaurant and saw that two employees had already ordered food and drinks. He and the others then placed their orders. According to Mr Wyss, he reminded the crew that no alcohol was to be consumed.

[3] Mr Wyss gave evidence that during the lunch, he saw several of the crew members consume multiple alcoholic drinks. He said that, as he had finished work for the day, and as others were drinking, he ordered himself a scotch and dry. The lunch ended at around 2.40pm. The crew discussed their plans for the following day’s work and left. Later in the afternoon, Mr Wyss was contacted by the project client and told that works were to be suspended, and that certain ‘make safe’ activities would need to occur. Mr Wyss attended the site that evening to assist contractors to complete the relevant tasks.

[4] Mr Wyss gave evidence that on 15 August 2022, he received a telephone call from Mr Scerri, who told him that he was stood down for the rest of the day. On 16 August 2022, Mr Wyss and a support person, Mr Jonathon Wrobel, attended a meeting with Mr Scerri and the company’s human resources adviser. Mr Wyss said that Mr Scerri presented him a ‘version of events’ from 4 August 2022, and did not give him a chance to speak. He said that Mr Scerri began shouting and told him that he was dismissed. Later that day, Mr Wyss received an email from Mr Scerri which stated that his employment had been summarily terminated for serious misconduct.

[5] Mr Wyss said that he had told the crew not to consume alcohol, as directed by Mr Scerri. Two employees had bought alcoholic drinks before he arrived at the venue. Others had bought drinks contrary to his instruction. Mr Wyss said that although he had consumed one drink himself, this had not occurred on paid time, because he had finished work for the day. It was only later that he was recalled to work. In his F2 application, Mr Wyss said that none of the crew members had consumed a lot of alcohol and that no one was drunk. He also said that on the two Fridays prior to the lunch on 4 August 2022, the company had taken employees out to lunch and alcohol had been consumed.

[6] Mr Wyss submitted an unsworn statement from Mr Wrobel, who said that during the meeting on 16 August 2022, Mr Scerri raised his voice at Mr Wyss and dismissed his responses. Mr Wrobel said that he believed the company had already made its decision about Mr Wyss’s fate. Mr Wyss also submitted an unsworn statement from Mr Stephen Bray, one of the crew members who attended the lunch on 4 August 2022. Mr Bray said that Mr Wyss had made clear to the crew that he would purchase meals only but not drinks. Neither Mr Wrobel nor Mr Bray attended the hearing.

[7] Mr Scerri gave evidence that on the morning of 4 August 2022, Mr Wyss called him and asked whether he could take the team out to lunch once work on their project had finished. Mr Scerri said that he agreed, but on the condition that Mr Wyss remind everyone that absolutely no alcohol was to be consumed. Mr Wyss asked whether he could also pay for everyone’s lunch (the implication being that the company would cover the cost) and Mr Scerri said that this was fine, but repeated that no alcohol was to be consumed. He specifically asked Mr Wyss to acknowledge this. Mr Wyss said ‘Yes, OK’.

[8] Mr Scerri said that he clearly recalled what he said to Mr Wyss during this telephone call for two reasons. First, he knew that the team members would need to drive their company vehicles back to the factory after the lunch. Mr Scerri said that the usual practice is for employees to commence work at company premises, then drive to their worksite in a company vehicle. Secondly, Mr Scerri had previously had concerns about Mr Wyss’s attitude to the company drug and alcohol policy. The policy states that alcohol is not to be consumed during paid work hours, and that employees must not consume alcohol at any workplace, subject to the CEO’s discretion to permit limited alcohol consumption at events and functions. Mr Scerri recalled that, during a work event in early 2022, Mr Wyss had asked him why alcohol was not permitted at the event, when it had been allowed on other occasions. Mr Scerri had replied that the company had a zero alcohol policy, but if there was a formal function at which drinking was allowed, employees would be told, and arrangements would be made for them to get home safely afterwards. Mr Wyss had then said: ‘That is bullshit. You say that simply because you don’t drink and you’re pushing that on others.’ Mr Scerri replied that this was the company’s policy.

[9] Mr Scerri gave evidence that on 4 or 5 August 2022, he received a telephone call from Mr Anthony Sango, the company operations manager, who said that he had discovered that employees, including Mr Wyss, had been drinking at the lunch on 4 August 2022. It is clear from Mr Sango’s evidence that this call occurred on the evening of 4 August 2022. Mr Scerri asked Mr Sango to investigate. Over the next week, Mr Sango reported to Mr Scerri that he had spoken to four of the five employees who attended the lunch with Mr Wyss: Brandon Filomeno, George Sapountzis, Michael Riley and Darrell Jones. Mr Filomeno, Mr Sapountzis and Mr Riley said that alcohol had been consumed at the lunch, including by Mr Wyss, and that afterwards they had driven their company vehicles. Mr Jones said that he and the fifth employee, Stephen Bray, had been drinking non-alcoholic beer; Mr Sango had made further inquiries and accepted that this was the case. Mr Sango reported that both Mr Filomeno and Mr Sapountzis had returned to the work site after the lunch to work on the road.

[10] Mr Scerri concluded that, contrary to his direction, Mr Wyss had not told the crew that no alcohol was to be consumed at the lunch, had consumed alcohol himself, and had allowed two employees to return to the work site after consuming alcohol. He considered that Mr Wyss had committed serious misconduct. On 15 August 2022, Mr Scerri called Mr Wyss and said that he wanted to speak to him about allegations that the team had been drinking at the lunch on 4 August 2022. According to Mr Scerri, Mr Wyss replied with words to the effect of ‘This is bullshit, yes they were drinking but we had finished work and [it was] not a big deal.’ Mr Wyss then said that he had told the employees not to drink but they had done so anyway. He said that he consumed one alcoholic drink, but that he had finished work, and that in any event he did not report to Mr Scerri, but to Mr Gus Carfi, the chairman of the company’s parent entity. At the hearing, Mr Wyss denied saying to Mr Scerri ‘this is bullshit’ and that it was not a ‘big deal’. He said that he told Mr Scerri that in his eyes he was not ‘on the clock’ during the lunch.

[11] Mr Scerri gave evidence that on 16 August 2022, he met with Mr Wyss and told him that he had been given a clear instruction not to allow employees to drink at the lunch, but that employees had proceeded to drink alcohol, as had Mr Wyss himself. Mr Wyss said that he had told the team not to drink, but that by the time he got to the venue, some had already started to drink. When Mr Scerri asked Mr Wyss why he had drunk alcohol, he replied that he did not know, and that he must have had a ‘mind lapse’. Mr Scerri told Mr Wyss that his employment was terminated with immediate effect. Mr Scerri’s evidence was that he did not shout at Mr Wyss during this meeting. He said that Mr Wyss spoke to him aggressively and was not remorseful.

[12] Mr Filomeno, Mr Sapountzis, and Mr Riley gave evidence that Mr Wyss did not tell them that they could not drink alcohol and that they saw Mr Wyss drinking alcohol himself; that they knew that drinking was against company policy; and that they drove company vehicles after the lunch. Mr Filomeno said that, when Mr Wyss invited him to lunch, he said that he had not yet finished the cleaning up, to which Mr Wyss replied that he could come back later to finish it. Mr Filomeno said that after the lunch, he and Mr Sapountzis returned to the site for some 15 minutes to finish the cleaning. Mr Riley said in his evidence that at some point during the lunch, Mr Wyss addressed the group and thanked them for their hard work. He raised his drink and said ‘Cheers’. Mr Wyss then nodded towards Mr Filomeno and said: ‘Don’t tell Uncle Darren’ (Mr Filomeno is Mr Scerri’s nephew). Evidently what was meant was that Mr Filomeno should not tell Mr Scerri that the team had been drinking at lunch.

[13] I make the following factual findings. First, I accept Mr Scerri’s evidence that he clearly told Mr Wyss, twice, that no alcohol was to be consumed, and that Mr Wyss acknowledged that he understood this. This was clearly a lawful and reasonable direction.

[14] Secondly, I find that on 4 August 2022, Mr Wyss did not tell employees that they must not drink at the lunch. I do not accept Mr Wyss’s evidence that he did so. It is not credible for Mr Wyss to say that he instructed the team not to drink, because he himself was drinking. I accept the evidence of Mr Filomeno, Mr Sapountzis and Mr Riley that Mr Wyss did not tell any of them not to drink. They were credible and creditable witnesses. Their evidence candidly acknowledged their own failings on the afternoon in question. In his cross-examination of these witnesses, Mr Wyss did not suggest to them that their evidence on this point was wrong. I note that Mr Bray’s unsworn witness statement, tendered by Mr Wyss, did not say that Mr Wyss had instructed the team not to drink. It said merely that Mr Wyss had told employees that he would not pay for their drinks. Mr Wyss failed to follow Mr Scerri’s lawful and reasonable direction.

[15] Thirdly, I find that Mr Wyss did not take Mr Scerri’s instruction seriously. This is obvious from the fact that Mr Wyss not only failed to tell the crew not to drink, but decided to drink himself. Further, I accept the evidence of Mr Scerri about his discussions with Mr Wyss about alcohol consumption at the event in early 2022, and Mr Scerri’s evidence about his telephone conversation with Mr Wyss on 15 August 2022, when Mr Wyss acknowledged that employees had been drinking at the lunch and said that it was not a ‘big deal’. Mr Scerri was a credible witness. His evidence was clear and convincing. I also accept the evidence of Mr Riley that during the lunch, Mr Wyss said ‘cheers’ and told Mr Filomeno not to tell Mr Scerri that they were drinking. Mr Wyss did not deny these things.

[16] Fourthly, I find that the consumption of alcohol by Mr Wyss and crew members was contrary to the company’s drug and alcohol policy, because at the time of the lunch on 4 August 2022, their working day had not yet ended. The policy provides that employees must not ingest alcohol during work hours. Mr Wyss’s contract stated that his normal working hours were from 8.00am to 4.30pm, inclusive of a lunch break. Mr Wyss had finished his work for the day but he remained on the company’s time. Further, he and the other employees still had to drive their company vehicles. Mr Wyss acknowledged that the company had a zero alcohol policy and that driving company vehicles under the influence of alcohol was a breach of the policy. He contended however that there was no evidence that he had alcohol in his system at the time he drove his work vehicle after the lunch, and that he believed he would have had a zero blood alcohol content, because he had only had the one drink. I find on the balance of probabilities that alcohol remained in Mr Wyss’s system. But in any event, he breached the policy by drinking during work hours.

[17] Fifthly, I reject the suggestion of Mr Wyss that the company had an inconsistent approach to the consumption of alcohol. The policy was clear. There was to be no alcohol on company time or in the workplace. The CEO had a discretion to permit limited alcohol for approved functions and events, which he did from time to time. I accept Mr Scerri’s evidence that when he exercised this discretion, arrangements were made to ensure that employees could return home safely, such as by providing taxi vouchers. Mr Wyss said that on the two Fridays preceding the lunch on 4 August 2022 he had attended lunches where alcohol had been served, but that he had not been provided with taxi vouchers. Mr Scerri said that he found this hard to believe. Whatever occurred here, there is no suggestion that the company had not approved the use of alcohol at these events. But on 4 August 2022, no permission had been given for alcohol to be consumed. An explicit direction had been made to the contrary.

[18] Sixthly, I reject the suggestion of Mr Wyss that, because the crew was only assisting him on the project and were not his direct reports, he was not responsible for them. Mr Wyss was the senior person present at the lunch. It was Mr Wyss who asked for Mr Scerri’s permission to take the team to lunch. It was Mr Wyss who was told, twice, that there was to be no alcohol.

[19] I find that Mr Wyss knew that Mr Filomeno would be returning to the project site to finish the cleaning up work after lunch. I accept Mr Filomeno’s evidence that Mr Wyss told him that he could return to finish the work later. Mr Wyss therefore must have known that Mr Filomeno would or could be working after having consumed alcohol at lunch. And he also knew that he and other employees would be driving their company vehicles.

[20] Finally, I reject Mr Wyss’s suggestion that, because of their family and other personal connections to the management of the company, the evidence of Mr Filomeno, Mr Sapountzis and Mr Riley was not credible. I found their evidence to be convincing.

Consideration

[21] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). A valid reason is one that is sound, defensible and well-founded.

[22] Plainly the company had a valid reason to dismiss Mr Wyss. He ignored Mr Scerri’s explicit instruction that he remind employees not to drink alcohol, and that no alcohol be consumed at the lunch. He failed to follow a lawful and reasonable direction. He breached the company’s drug and alcohol policy. Further, Mr Wyss allowed Mr Filomeno and also Mr Sapountzis to resume work at the project, and allowed employees to drive their company cars, after they had consumed alcohol. This was inconsistent with his responsibility as the senior employee at the lunch. In my assessment, Mr Wyss’s conduct amounted to serious misconduct. He defied Mr Scerri’s direction and company policy in respect of an important workplace safety matter. He told Mr Filomeno not to tell Mr Scerri that they had been drinking. This behaviour was a breach of Mr Wyss’s duty of fidelity to his employer. It was wilful and deliberate behaviour that was inconsistent with the continuation of his contract of employment. I note that, even leaving the application of the policy to one side, Mr Wyss’s failure to follow Mr Scerri’s direction was of itself a valid reason for dismissal. The presence of a valid reason for dismissal in this case weighs in favour of a conclusion that Mr Wyss’s dismissal was not unfair.

[23] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and afforded an opportunity to respond to any reason related to their conduct or capacity (ss 387(b) and (c)). Both of these things occurred in this case. The company notified Mr Wyss of the reasons for his dismissal and gave him an opportunity to respond to allegations at the meeting on 16 August 2022. I do not accept Mr Wyss’s evidence that Mr Scerri did not listen to him in the meeting of 16 August 2022. Based on Mr Scerri’s account of the meeting, which I accept, Mr Wyss had an opportunity to explain himself. He simply had no adequate explanation. As discussed further below, one thing Mr Wyss could have said, but did not say, was that he was very sorry and that he understood that he had done the wrong thing. I accept the evidence of Mr Scerri that Mr Wyss told him that he must have had a ‘mind lapse’, suggesting that he had forgotten about the clear instruction that had been given to him. This was a completely untenable statement, especially given Mr Wyss’s comment to Mr Scerri on 15 August 2022 that the matter was ‘bullshit’ and ‘not a big deal’. Mr Scerri denied that he shouted at Mr Wyss. I believe him. Mr Wrobel said in his unsworn statement that Mr Scerri raised his voice. I find this unsubstantiated; Mr Wrobel did not attend the proceeding and was not cross-examined.

[24] As to the other matters which the Act requires the Commission to take into account, the company did not refuse, unreasonably or otherwise, to allow Mr Wyss to have a support person present to assist in discussions relating to the dismissal (s 387(d)). Mr Wrobel accompanied Mr Wyss to the meeting on 16 August 2022 as a support person. If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about this prior to dismissal. In this case, the reason for dismissal related to conduct, not performance.

[25] The Commission must consider the degree to which the size of the employer’s enterprise and any absence of dedicated human resources specialists could impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). The company is not a small employer and has human resources advisers. These considerations carry no weight.

[26] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). I take account of the fact that prior to his dismissal Mr Wyss did not show any remorse for his flagrant disregard of Mr Scerri’s direction and company policy, nor did he display any insight into the seriousness of his conduct. At the hearing, Mr Wyss said that he ‘probably should not have had a drink’ and that he ‘should have told [employees] … they were not allowed to do that’. This was a half-hearted and belated apology, if it was one at all. Mr Wyss did not apologise to Mr Scerri on 15 or 16 August 2022. He told Mr Scerri that the matter was ‘bullshit’. He told Mr Scerri that he did not think that the lunch period was company time. That excuse would notionally apply to the other employees as well. But of course it was no excuse at all. What Mr Wyss did not say to Mr Scerri was that he had done the wrong thing, that he was very sorry, and that he would never do it again. Even after his dismissal, Mr Wyss continued to argue that he had done nothing wrong, when quite obviously he had.

[27] I take account of the fact that on 20 April 2022, Mr Wyss had been given a final warning for having abused Mr Scerri in breach of the company’s code of conduct.

[28] It is relevant to consider whether immediate dismissal was a disciplinary response that was proportionate to Mr Wyss’s conduct. In my view it was. He defied his employer’s direct instruction. He breached the policy. He failed to have others comply with the policy. He allowed crew members to drive after having consumed alcohol at a lunch for which he was supposed to be paying on behalf of the company. He allowed employees to resume work after drinking. Mr Wyss said that it was unfair that he was dismissed, whereas the three other team members who drank alcohol were given final warnings. I disagree. Mr Wyss’s conduct was much worse than that of the other employees. He flouted a direction of his employer. The other employees did not. And although the other employees, like Mr Wyss, breached the policy, they expressed contrition to the company. Mr Wyss did not. Further, Mr Wyss was in a position of seniority and should have held himself to a higher standard.

[29] Mr Wyss contended that the company’s conclusion that he had committed serious misconduct was inconsistent with the fact that he was allowed to go back to the project site on the evening of 4 August 2022. He said that by that time, Mr Scerri knew that he had been drinking at the lunch and that he was returning to the client worksite that evening. I reject this argument. Mr Scerri said, and I accept, that he did not know that Mr Wyss was returning to the site that evening. Mr Wyss also submitted that he was allowed to continue working from 4 August to 15 August 2022, which suggested that his conduct at the lunch could not have been that serious. I reject this. The matter had to be investigated. The circumstances did not reasonably require an immediate suspension.

[30] Mr Wyss said that the company had an agenda to get rid of him, and that this was clear from the fact that immediately after his dismissal, a new person was hired. But a new person was hired a week later, not immediately. The evidence does not substantiate Mr Wyss’s contention that the company was looking for a reason to dismiss him. Even if this had been the case, Mr Wyss gave the company such a reason: he flouted Mr Scerri’s explicit direction, as well as the company’s alcohol policy. Mr Wyss claimed to be owed a bonus by the company. Mr Scerri denied this and said that bonuses were discretionary. Mr Wyss has not established that he has any entitlement to outstanding payments from the company. In any event this would be a matter for a court, not the Commission.

Conclusion

[31] Taking into account all of the circumstances, I consider that the dismissal of Mr Wyss was not harsh, unjust or unreasonable. It was not unfair. Mr Wyss’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Wyss for himself

A. Dearden for the respondent

Hearing details:

2022

Melbourne

30 November

Printed by authority of the Commonwealth Government Printer

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