Jul 202016
 

Wining and dining is an aspect of today’s workplace culture, for insurance broker Mitchell Innes a night of drinking on the company tab meant the end of his employment with Willis Australia Group Services (‘Willis’).

The Story

Mr Innes attended a work conference in Melbourne late October 2012, during the conference he and a number of colleagues had a big night of drinking paid for by the company, the bill coming to a total of $740 between the 12 of them.

Later that night, Mr Innes being unable to find his room key, was spotted by one of his colleagues sleeping outside his room. The next day he arrived at the training conference where he was said to smell strongly of alcohol, be behaving in a playful manner, talking loudly, slurring his words, making animal noises and throwing lollies.

Willis subsequently terminated Innes’s employment on the grounds of ‘gross misconduct.’ The contract provided that for “serious misconduct” the employer could “take disciplinary action or counsel” or “in serious circumstances…summarily dismiss” the employee.

The First Case – Mitchell Innes wins

In 2014 the District Court of NSW awarded Innes $296,650.75 for the breach of his employment contract following the termination, this was made up of: loss of salary; loss of retention bonus; loss of long service leave; entitlements and interest.

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

The Appeal Decisions – Innes wins, damages recalculated

On Appeal the Supreme Court of NSW decreased damages to $89, 571.61 on the basis that although the Judge was correct in the decision that the summary dismissal was in breach of the employment contract, the assessment of damages was excessive. The argument was, but for the invalid termination, Mr Innes would have been given six months notice and dismissed.

Lessons from the Decision

The case demonstrates that an employer’s attitudes towards alcohol consumption can have an impact on the success of the employee’s claim. In this case, Willis had a ‘high tolerance’ to alcohol consumption, which led the Court to conclude that Mr Innes' behaviour did not amount to ‘gross misconduct.’

Read the full case of Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) (2014) here:

Case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWDC/2014/250.html?stem=0&synonyms=0&query=title(Mitchell-Innes%20and%20Willis%20Australia%20Group%20Services%20Pty%20Ltd%20)

Appeal Decision 1: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2015/381.html?stem=0&synonyms=0&query=NSWCA%202015%20381%20or%202015%20NSWCA%20381

Appeal Decision 2: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2016/43.html?stem=0&synonyms=0&query=NSWCA%202015%20381%20or%202015%20NSWCA%20381

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