Raising a glass to toast the success of a disciplinary appeal

When Phil was sacked for admittedly breaching a key rule at work, his wish to be reinstated on appeal was always going to be difficult to achieve.

The pub where he had been employed for six years had a strict no drinking on duty policy for staff.

Phil was well aware of his employer’s zero-tolerance approach to the matter, having seen other staff get fired for doing it.

He knew of at least one ex-employee who had made an unsuccessful claim for unfair dismissal after being sacked for the same allegation.

Phil found himself in serious trouble when teammates from his hockey team were drinking in the bar, and repeatedly encouraged him to join them. He resisted and explained he could not.

But as the group was getting ready to leave, Phil was urged one last time to have a drink. Regrettably, he agreed and had a single shot.

What Phil did was discovered by chance after management checked CCTV for evidence of another incident in the bar at around the same time.

He was immediately suspended from work, and later sacked.

Phil contacted our Employee Support Centre for help to challenge his dismissal, which he believed was unduly harsh.

Our representative acknowledged the strict no drinking on duty policy, but knew each case should still be judged on its individual facts and circumstances.

After reviewing the evidence and fully discussing the case with Phil and quizzing him on it, our representative agreed the outcome was too severe. This was due to mitigation, which he believed should have led to a sanction short of dismissal.

What was clear from the evidence, and in speaking to Phil, was that he was not able to explain his mitigation, did not understand the relevance of it and despite touching on it, it was not explored at the disciplinary hearing. This was captured in the notes of the hearing.

Phil submitted a disciplinary appeal and was accompanied by one of our representatives at the disciplinary appeal hearing.

Our representative conveyed Phil’s remorse and apology and made it clear he had taken appropriate learning from what occurred.

Our representative having reviewed The Alcohol at Work Policy focused on the fact it  made clear that drinking on duty ‘may’ lead to disciplinary action and dismissal.

He told the hearing the emphasis on the word ‘may’ meant dismissal should not be automatic, there was room for the use of discretion in each case, and every breach of policy should be fairly judged on its particular circumstances.

Our representative explained that Phil made an uncharacteristic and genuine mistake after being put under constant pressure, over several hours, to have a drink at a time when he was extremely vulnerable.

It was explained in detail that there was distinct difference between a genuine mistake and act of gross misconduct and the the aggravating factor of personal psychological torment at the time should also be considered, as it undoubtedly affected Phil’s judgement and decision making.

Phil was going through a messy divorce, had limited access to his young children, and had been subjected to serious and malicious allegations made by his ex-wife that required police involvement. The allegations were found to be groundless.

The appeal hearing was told that Phil’s manager was aware of this and had offered a type of informal counselling and support, and could provide evidence of the impact the situation had on Phil.

It was explained that Phil made an honest mistake at a traumatic time in his personal life, he was not intoxicated, was remorseful and apologetic, it was out of character, he was a good worker with an exemplary record and had taken learning from what happened which should provide an assurance it would not happen again.

These were some of the key points made in a comprehensive appeal presentation in support of Phil’s case, with added emphasis placed on the room for the use of discretion in addressing any breach of company policy.

Phil was reinstated following the appeal hearing, and the sanction was downgraded to a written warning.