Whittingham v Ascott Air Conditioning Pty Ltd

Whittingham v Ascott Air Conditioning Pty Ltd is a case in which the worker, Mr Whittingham, appealed against the Arbitrator's decision that his dismissal was justified due to serious and wilful misconduct. The Arbitrator determined that Mr Whittingham's intoxication and subsequent assault of his employer at a Christmas party held at the employer's premises constituted serious and wilful misconduct. The appeal was heard in the Civil and Administrative Tribunal of New South Wales.

The legal issues before the Tribunal were whether Mr Whittingham's actions were within the course of his employment and whether they constituted serious and wilful misconduct warranting dismissal. The Tribunal considered whether the Arbitrator had erred in finding that Mr Whittingham's conduct was in the course of his employment, and whether the Arbitrator's decision was unreasonable. The Tribunal also had to decide whether the Arbitrator's decision was within the scope of the evidence and whether the dismissal was justified.

The Tribunal found that the Arbitrator had erred in finding that Mr Whittingham's conduct was in the course of his employment. The Tribunal held that the Arbitrator's decision was unreasonable and that the dismissal was not justified. The Tribunal also found that the employer had supplied alcohol at the Christmas party and that Mr Whittingham's excessive consumption of alcohol was not a voluntary act. The Tribunal noted that the employer had failed to take reasonable steps to prevent the excessive consumption of alcohol, which contributed to Mr Whittingham's conduct.

The Tribunal extended the time to appeal until 28 January 2010 and revoked paragraph one of the Arbitrator’s determination. The matter was remitted to an arbitrator for further orders consistent with the Tribunal's reasons. The Tribunal also varied the Arbitrator’s determination to include an order that the employer pay Mr Whittingham's reasonable hospital and medical expenses resulting from his injuries received on 19 December 2008, upon production of accounts or receipts. All other orders by the Arbitrator were confirmed.