It is well known that alcohol and other drug use can become an occupational health and safety issue in the workplace, particularly if an employee’s ability to exercise judgment, coordination, concentration, and alertness is impaired. Employees who present for work while impaired by alcohol or other drug use can put both themselves and others in the workplace at risk of harm, as well and increase the potential for damage to occur plant, equipment and other property.
Many employers do proactively take steps to address the risks associated with the use of alcohol and other drugs in the workplace by formulating and implementing a policy and supporting procedures, that address the specific circumstances of their workplace. However, a case heard before the Fair Work Commission has highlighted the need for consistency to be applied when applying a drug and alcohol policy in practice.
In this case, the applicant was employed by his employer for a period of more than eight years. He was contacted by his employer late in the afternoon while absent on a scheduled day off and offered a shift that was scheduled to commence at 5.45pm. The employee accepted the additional shift and attended the workplace.
After commencing work, the employee was selected for a random breath test and recorded a blood alcohol level of 0.037. Despite returning this result, which was provided to the employer, the employee was again requested to work a 12-hour night shift on the following day. The employee accepted and subsequently completed this further shift.
Some three days later, the employer advised that they were commencing an investigation into the employee’s breath test results. During the investigation process, the employee initially advised that he had consumed one beer earlier in the day prior to accepting the shift. However, he then later admitted that he had consumed a further two drinks. Following their investigation, the employee was summarily dismissed on the grounds of serious misconduct for having breached the employment contract, the enterprise agreement and the employer’s Drug and Alcohol Policy.
The employee challenged his dismissal as being unfair. In making its findings, the Fair Work Commission found that while the breach of Drug and Alcohol Policy did give the employer a valid reason for dismissing the employee, the reason for dismissal itself was not serious enough to justify summary dismissal. It was noted by the Commission that the employers Drug and Alcohol Policy stated:
- that employees who tested between 0.01 and 0.05 should be stood down and given a warning at the start of their next shift.
- that dismissal could occur only where a second positive blood alcohol reading was recorded.
- That ‘proven intoxication’ constituted serious misconduct justifying dismissal, however failed to define ‘intoxication’, thereby leaving it to the employee’s manager to interpret the meaning.
- where an employee was found to be intoxicated, the policy did provide for consideration of, ‘disciplinary action short of dismissal, such as a warning or some lawful direction’ including that the employee must undergo a rehabilitation program under the EAP.
It was further identified by the Fair Work Commission that there had, in practice, been multiple instances in which other employees had tested positive to the testing of alcohol but had not been dismissed by the employer.
As such, the Fair Work Commission held that the employee’s dismissal on the grounds of serious misconduct was not justified. The reasons for this finding included:
- The employer’s Drug and Alcohol Policy provided that employees who had tested positive could still remain employed, and receive a warning;
- The employee did not knowingly or intentionally drink alcohol before a rostered shift as the alcohol had been consumed on his rostered day off;
The employee was requested by his employer to work a further 12-hour shift following him having tested positive.
While the Commission agreed with the employer there was a valid reason for dismissal, the employer’s disciplinary action in summarily terminating the employee was disproportionate to the nature of the employee’s conduct given the circumstances. As a result, the employee was reinstated with an order to maintain his continuous service.
This policy highlights that need for employers to ensure that they have appropriate policies and procedures in place regarding drugs and alcohol use in the workplace. Such policies, as with all workplace policies and procedures, need to be clearly understood by both employees and management, and be implemented consistently across the workplace. Appropriate training should be provided where required to ensure all employees and managers are familiar with company policies and expectations.
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