Boags Brewery (Mr Allan John Button v J Boag & Son Brewing Pty Ltd – U2009/12078) was ordered to reinstate an employee (Mr Allan Button) after his employment was terminated by the Company because he could not perform the inherent requirements of his role. Mr Button was apprehended for driving with a blood alcohol reading in excess of the prescribed limit on 7 August 2009, which was after the time the Company had decided to terminate employment – but before the actual termination occurred.
Mr Button, who had been employed for just over 4 years, submitted that he had successfully been performing modified duties in his role of brewery operator for approximately 8 months.
The Company, through a number of witnesses, claimed that it was unaware that Mr Buttons’ restrictions were permanent.
Senior Deputy President (SDP) Kaufman of Fair Work Australia heard the unfair dismissal case and in addition to witness evidence, considered a number of doctors’ and occupational therapist’s reports. SDP Kaufman found that the Company witnesses’ claims in regard to the permanent or temporary nature of the modified duties, seemed to be ‘a somewhat self serving reconstruction of the events’.
The Company further claimed that Mr Button’s colleagues were inconvenienced because they had to assist Mr Button to perform some the duties of his role. However it was the evidence of two of Mr Button’s former work colleagues that there were no issues with assisting Mr Button and one of the former work colleagues also stated that he was not aware of complaints by others.
Mr Button being apprehended for driving with a blood alcohol reading in excess of the prescribed limit on 7 August 2009, was not considered a valid reason for termination because at the time of this occurrence ….his employment had all but been terminated.
Senior Deputy President Kaufman ordered Mr Button’s reinstatement to his former position (with the same restrictions to his duties) including compensation for remuneration lost between the time of termination and date of order.