A poultry worker, who was sacked the morning after Melbourne Cup Day for allegedly being drunk and sleeping on the job, has won her unfair dismissal claim. After drinking wine during the day on 4 November last year, a machine operator at a Mornington Peninsula chicken company showed up to work at the farm. She fell asleep during her midnight-7am shift and accidentally caused up to 50 chickens to be “smothered” to death, the Fair Work Commission heard.

The employee claimed her earlier alcohol consumption of up to five glasses of wine meant she was unable to drive to the Ripplebrook farm, but she believed she was sober enough to work and operate the machinery. The employee denied being drunk, saying she did not want to take the risk of driving because she could have been breathalysed. “I would have had it [alcohol] on my breath still, which could make me over .05,” she said.

Her boss was called to the farm at about 3am on 5 November by another worker, who claimed the employee was “useless”, saying she was intoxicated and had fallen asleep in a truck. The employee was fired by the boss sometime after 3am over the phone, and then in person at 3.45am when he arrived at the farm and smelt alcohol on her breath.
The employer argued that the employee was intoxicated and could cause “serious and imminent” health and safety risks.

However, it was ruled that the boss had insufficient knowledge about her condition in forming the view that she was intoxicated and took no steps to objectively assess her condition. The employee was also not provided with an opportunity to respond to the allegations against her.

The FWC rejected the argument that the employee neglected her duty during work hours by being “passed out in the truck”, with the company unable to counter the employee’s testimony that sleeping on the job was commonplace when trucks did not arrive on time. There was also insufficient evidence to show that the employee was bound to a zero-tolerance alcohol policy at work, the tribunal found. The employer was ordered to pay the employee $7000 in compensation plus superannuation.


iHR believes that incidents such as this point to the need to manage everyday performance in the workplace. To assist our clients in this respect, we are running a full-day workshop that will help participants to build the competence and confidence to effectively manage staff performance. Content includes identification of leadership behaviours that will foster a high performance culture as well as management approaches for under-performance.



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