WHS 15/08 B

Proof:  Thorough drug and alcohol policy supports dismissal

A recent decision by the Fair Work Commission (FWC) provides encouragement to businesses, that a good policy can support a dismissal process.  This all resulted from an unfair dismissal case which was upheld by the FWC, agreeing with the employer that the employee deserved to be sacked.

Case in Point

On 27 January this year, the morning after Australia Day, an employee of a Western Australian business, commenced work at 6am.  He was operating a forklift, when he was subject to random drug testing, conducted in line with the company’s Fitness for Work policy.  The initial reading was 0.026%, with a subsequent test 20 minutes later being 0.020%.

There were on site anonymous self-testing facilities available to the employee at the time he commenced work on that day.  However, he did not choose to self-test and commenced work on the basis that he felt ‘okay’.  Despite having consumed 20 beers and getting just 4.5 hours sleep the night before.  So how did the company progress the process from here?

  1. The Health and Safety officer met with the employee and advised him that he was in breach of the policy and was required to leave the premises
  2. The company offered to provide a taxi, but the employee declined and drove himself home.
  3. On 3 February, the employee attended a meeting, with his representative and officers of the business to discuss the breach and any mitigating factors that may have led to the breach
  4. The employee was provided a letter at the meeting entitled ‘Breach of Fitness for Work Policy’ which concluded with the statement ‘Given the above, the business will be terminating your position’
  5. At the meeting the company agreed to review this decision, taking into account matters raised at the meeting
  6. On 6 February, the employee was advise that the business had taken into account any mitigating matters raised at the meeting three days prior, and the decision to terminate his employment remained

Consequently, the employee believed his dismissal was harsh, unjust and unreasonable, and filed an unfair dismissal application stating that his intoxication was a genuine mistake and not willful or deliberate.  In addition he claimed that it was a first time offence, relatively minor and did not result in any actual harm.  He also requested that the FWC consider his length of service, generally good performance and disciplinary record.

So what caused the FWC to determine that the dismissal was fair?

  1. They considered – section 387 of the Fair Work Act – was there a valid reason for dismissal?
    • The primary document and reason for dismissal was the Fit for Work policy – ensuring that an employee is able to ‘perform work in a manner that does not pose a risk, compromise or threaten the health and safety of themselves or others’ – therefore it was supported by alcohol and drug screening in order to achieve this objective.
    • The policy provided for:
      • screening at many stages – prior to employment, on a random basis, for cause, incident based and self-screening
      • a retest after 20 minutes if there was an initial positive reading for alcohol
      • clear consequences, including termination of employment, if they still had a positive reading
  1. They also took into account the employees defense that he ‘felt okay’ and his length of service
    • The commissioner stated that if this evidence was put to the ‘front bar’ that after 20 cans of full strength bear and 4.5 hours sleep, he felt fine – it would be greeted with a very Australian saying related to animal manure.
    • In addition, the employee knew when he was drinking:
      • that he had to attend work the next day,
      • that he could not attend work with a breath alcohol reading beyond zero due to his 30 years previous work experience and the Fit for Work policy
      • other employees had been recently dismissed for having breath alcohol readings beyond zero

 

Finding:  Therefore, it was found that the business had a sound, defensible and well-founded reason to dismiss the employee

 

  1. The FWC then considered, was he notified, given the opportunity to respond and allowed to have a support person in any discussions relating to the dismissal
    • The employee was allowed a support person present
    • The employer had already reached a decision to dismiss the employee prior to the meeting on 3 February as per the termination letter issued – which did not offer the employee the correct procedural fairness

 

Finding:  The commission agreed that better procedural fairness could have been adopted – however when considering the total actions of the company in conjunction with the relevant reason for dismissal – they decided that a minor defect in the process should not triumph over the substance of the dismissal.

 

Conclusion:  The commissioner concluded that ‘the employer had a valid reason, and was satisfied that the dismissal was not harsh, unjust or unreasonable in the circumstances.

 

This case highlights the importance of a well-rounded and thorough drug and alcohol policy, the benefits of following that policy when breaches occur and ensuring the correct processes are followed.  If they didn’t have a history of ‘zero tolerance’ and were inconsistent in the application of the policy, the result may have gone the other way.

Brismark can assist you in creating a drug and alcohol policy which can be applied to your business.  If you are concerned about managing situations involving drugs and/or alcohol, or require assistance with the implementation of any other workplace policies, contact Business Services on 3915 4213 or [email protected].

Source:  CCIQ blog, by Darrel Giles, 8 October 2015

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