The dismissal of an employee who let her employer know that she would not attend work the next day because she would be hung-over has been found by the Fair Work Commission as valid but harsh.

This case demonstrates that employers may discipline employees for out of work conduct that is in breach of their general duty to be fit for work. However, in doing so, employers must be vigilant to ensure they respond proportionately, especially by considering whether prior warnings for similar conduct are distinguishable.


At 4.56pm on 25 April 2017, the employee left a message for her employer saying:

“Um its ANZAC day, my birthday, and I admit I have over indulged so I’m taking into account one of the golden rules be fit for work and I’m not going to be fit for work so I won’t be there.”

The employer alleged that the employee breached its code of conduct by not being responsible or accountable for her actions and specifically referred to her decision to drink so much that she would be unfit to work the next day. The employer also relied on the employee’s previous warning for similar conduct.

For her part, the employee argued that there was no valid reason for her dismissal because it related to out of work conduct and that the employer’s decision to dismiss her was also disproportionate.

Deputy President Barclay found that there was a valid reason for dismissal, being the employee’s refusal to attend for work without reasonable justification. He found that while her drinking happened outside of working hours, it had a sufficient link with the employment relationship, reasoning that employees have a common law duty to be fit for work.

However, he also found that the employee’s dismissal was harsh because her previous warning related to an extenuating circumstance, where she drank too much and could not attend work after finding out a relative was gravely ill. In these circumstances, the Deputy President considered that a less severe sanction than dismissal was appropriate. He was also mindful that if the employee had told the employer on the morning of 26 April of her incapacity for work, then her dismissal would have been unlikely.

The Deputy President found reinstatement was inappropriate because the employee was antagonistic toward her former employer and also because she failed to understand the significance of her actions or accept that she had done anything wrong. However, he awarded her $8,229 in compensation.

Avril Chapman v Tassal Group Limited t/a Tassal Operations Pty Ltd [2017] FWC 4630