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Norman Waterhouse

A Night at the Opera – The Final Act

Earlier this year, we published an article regarding the decision of Puszka v Ryan Wilks Pty Ltd [2019] FWC 1132 (Originial Decision). On 13 May 2019, Ryan Wilks v Puszka [2019] FWCFB 3323 was heard on appeal in the Fair Work Commission (Commission) to the Full Bench of Vice President Catanzariti, Senior Deputy President Hamberger and Commissioner Bissett (Full Bench).

The case concerned the summary dismissal of Ms Trudi Puszka (Ms Puszka), an employee of Ryan Wilks Pty Ltd (Ryan Wilks).

To recap, Ms Puszka was drunk at a work function at the Sydney Opera House and allegedly made disparaging remarks about Ryan Wilks and sexual propositions to a Sydney Opera House employee. Further, Ms Puszka was found vomiting in the bathroom and was helped to leave the venue. Due to her alleged misconduct, Ryan Wilks summarily dismissed Ms Puszka.

In the Original Decision, in consideration of Ryan Wilks investigation process, Commissioner Cambridge held that termination was harsh, unreasonable and unjust and ordered reinstatement of Ms Puszka’s employment. The Full Bench upheld the Original Decision and dismissed the appeal.

Decision of the Full Bench of the Commission

Ryan Wilks submitted that the Commission had made an error in its finding that there was “not a valid reason” for the dismissal of Ms Puszka. The Full Bench confirmed that Ms Puszka’s intoxication, vomiting and assistance in leaving the venue was the only conduct to be considered in determining whether there was a “valid reason” for her summary dismissal.

The Full Bench was not satisfied that Commissioner Cambridge had made an error in the Original Decision, that “... if one act of inoffensive drunkenness at an after work function provided valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs”. Further, the Full Bench confirmed that Commissioner Cambridge had correctly ordered reinstatement as the employment relationship “was capable of withstanding some friction and doubts”.

Accordingly, the Full Bench dismissed the appeal.

Take Home Messages

This case serves as a timely reminder that employers should exercise due diligence and ensure their workplace investigations are procedurally fair and that termination as a disciplinary outcome must be substantively fair in consideration of the conduct.

Further, while it may be awkward and uncomfortable that a once terminated employee returns, if the Commission is of the view that the relationship can be “satisfactorily reconciled” it may order reinstatement of employment.

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