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Intoxication in the Workplace

While it is commonly accepted that working while under the influence of alcohol is unacceptable, employers do need to be prepared by taking proactive steps to implement policies and to educate staff so as to:

·         Avoid any potential issues when addressing such behaviours in the workplace, and

·         Reduce potential risks (such as bullying, harassment, WHS breaches) which could result from intoxication.

·         Expectations when attending workplace functions or events where alcohol will be served.

All employers are encouraged to have a detailed Drug and Alcohol Policy in place which is well communicated and easily accessible for all employees.  When applying this policy in practice, it is essential that a consistent approach is adopted for addressing any instances of alcohol (or drug) use and intoxication in the workplace.

The lack of a clear policy, and the failure to apply the policy in s consistent manner can create headaches for employers, even where it can be demonstrated that an employee is under the influence of alcohol at work. For example, in the 2015 case of Cannon v Poultry Harvesting Pty Ltd, an employee who had arrived to work still intoxicated and fell asleep at his workspace was found to have been unfairly dismissed by the Fair Work Commission, as it was found that the employer did not have a valid reason for terminating his employment.

While in this instance, the employer did have a documented Drug and Alcohol Policy in place, the Fair Work Commission found that the content of the policy did not support the ‘zero tolerance’ stance which had been taken by the employer. Rather the policy provisions set out that a counselling based approach was to be taken to address instances of intoxication.  Based on this, the Commission held that the standards of behaviour the employee was being held to were unclear.

HR Advice Online members can access a copy of our Drug and Alcohol Policy Template from our online resources.

When planning workplace events where alcohol will be served, employers are obligated to ensure that alcohol is served responsibly and that steps have been taken to minimise potential issues, such as having a designated person/s responsible for ‘supervising’ or overseeing employees at the event, and ensuring that the start and finish times for the workplace event have been clearly communicated.

In one case heard before the Fair Work Commission, an employee became intoxicated while attending a work Christmas function, and was found to have:

·         Told a board member to “f*** off”

·         Wworn at other employees, including asking “who the f*** are you?”

·         Asked a number of inappropriate personal questions of colleagues

After the formal Christmas function ended, the employee and a number of his colleagues continued drinking at another a bar which was within the same venue. While doing so, the employee:

·         Tried repeatedly to touch a female colleague’s face

·         Kissed a female colleague on her mouth after having grabbed her head with his hands

·         Called another colleague a “b****”

-   Told another female employee that his "mission tonight is to find out what colour knickers you have on" 

Despite the employee’s actions, it was found that the employer’s decision to terminate him for this behaviour was harsh. In making its findings, the Commission held that the employer had not taken any steps to ensure that the venue would oversee the responsible serving of alcohol. Rather, employees were able to access alcohol freely without being asked to stop drinking if they were showing signs of intoxication.

While an employer can be vicariously liable for the conduct of an employee outside working hours where there is a sufficient connection with their employment, this was not applied in this case. Rather, it was held that in this instance that the employee’s behaviour following the workplace function was not connected with his employment because it was not "organised, authorised, proposed or induced" by the employer.

Similarly, while private conduct by one person towards a second person employed with the same employer may damage the employer's interests, in this case it was found that there was no enduring adverse impact on the other employees involved as they had either left the company, had minimal contact with the employee, or were not concerned by his behaviour.

Based on these findings, it was determined that the employees actions post the work function did not constitute a valid reason for dismissal. This case demonstrates that there can be a thin line between what actions are deemed to have occurred within and what occurred outside of the employment relationship, which can be difficult to identify. In all instances however, it is important for an employer to avoid responding disproportionately to intoxication within the workplace. While such behaviour should definitely not be condoned, the punishment does need to “fit the crime”.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.

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