In the recent unfair dismissal decision of Craig Hancock v Sydney International Container Terminals Pty Limited [2025] FWC 516, Deputy President Wright the Fair Work Commission (FWC) set the bar high for employers wanting to rely upon policies, or changes to policies, to terminate employment, even when those policies relate to a matter as fundamental to safety as the use of alcohol.
In this case the Applicant, a stevedore, was dismissed by the Respondent (which trades as Hutchison Ports Sydney) after he tested positive to alcohol following a workplace incident.
While the Deputy President held that the Applicant had breached the Drug and Alcohol Policy of the Respondent, and that this was a valid reason for dismissal, the dismissal was held to be unfair because, among other things, the Applicant was not aware of the changes to the Drug and Alcohol Policy which reduced the cut off level for alcohol to zero (from 0.02) and the Respondent did not provide adequate training in the policy change.
As Deputy President Wright noted (at paragraph 232):
“The fact that Hutchison was not able to definitively establish that Mr Hancock was aware of and understood the changes is a situation of its own making and could have been avoided if it had provided proper training then required Mr Hancock to acknowledge in writing that he was aware of and understood the policy.”
The Respondent took various steps to notify affected employees, including the Applicant, of the change to the Drug and Alcohol Policy. In doing so the Respondent submitted it was following the methods of communication requested by the WHS Committee.
The judgment explored these methods of communication in some detail. It was noted at paragraph 219 that the Respondent sent text messages and emails to employees:
“Initially, Hutchison sent a text message and an email to employees at their personal phone number and email addresses on 16 March 2023. The subject heading of the text message in the email was the name of the Drug and Alcohol Policy. The subject heading of the text message did not give any indication that the Drug and Alcohol Policy had changed. Similarly, the text message simply advised the recipient that a copy of the Drug and Alcohol Policy had been emailed to the employee. The text message did not state that the Drug and Alcohol Policy had changed. I accept that these messages were sent to employees who gave evidence on behalf of Mr Hancock.”
Deputy President Wright then critiqued this method of communicating with the affected employees in the relevant circumstances (at paragraph 220):
“This may well have been an appropriate method of ensuring that each employee was able to access the Drug and Alcohol Policy at some time in the future if they wished to refer to it. Presumably the alternative was to provide each employee with a printed hard copy which could be easily misplaced. However, I do not think that this was an appropriate way to communicate such a significant change to the Drug and Alcohol Policy to employees. Firstly, most employees did not have a work email address or phone number so the Drug and Alcohol Policy was sent to their personal accounts. There was no evidence before me about whether Hutchison requires employees to read documents which are sent to their personal email or mobile number. Secondly, the main role of Mr Hancock and other employees who gave evidence was to move containers around the terminal. Although there was evidence of some employees performing clerical or desk based duties, this does not appear to be widespread. The consequence of this is that it is unlikely that employees would have received and read the Drug and Alcohol Policy during the course of their duties. In this regard, I note the evidence that employees were not able to access personal email addresses on the work computers and that there were areas of the workplace that they could not carry their mobile phones.”
Deputy President Wright continued (at paragraph 221):
“It may well be appropriate for an employer to inform employees of changes to policies by emailing these to employees if employees have a work email address and usually work at a computer. It would be expected that such employees would receive the changed policy while undertaking their duties and be able to review the policy during their working day. This is to be contrasted to employees like Mr Hancock who would only see an email with a changed policy at work if they happened to be checking their personal emails on their phone during ‘downtime’ or while on a break. Given Mr Hughes’ evidence that there is significant ‘down time’ on shift, that time could have readily been used by Hutchison to train employees in small groups about changes to policies.”
At paragraph 222 Deputy President Wright identified a further issue, specifically:
“…if a person receives a work related email on a personal email account and there is no requirement from their employer that such emails be read and understood, there is a possibility that the employee will not open the email and leave it ‘unread’. This was an outcome which Hutchison appears to have never contemplated…”
The crux of the finding of the Deputy President in this regard was that even though emails and texts were sent by the Respondent, and may have been received by employees (including the Applicant), the content of those communications and the circumstances in which they were sent may not have ensured the information the communications were intended to convey (the change to the Drug and Alcohol Policy) had been seen, noted and understood by the employee.
Along with sending the texts and emails the Respondent also notified employees of the change to the Drug and Alcohol Policy in toolbox talks (of which it was accepted the Applicant attended at least one). This method of communication in these circumstances also came in for criticism from Deputy President Wright (at paragraph 224):
“The only communication of the changes to the Drug and Alcohol Policy which occurred during work time was during the toolbox talks on 17 and 19 March 2023. I accept the evidence of Mr Moon that Mr Hancock, Mr Beesley, Mr Bowman, Mr Samperi, Mr Farrell, Mr Dominguez and Mr McGrath attended a toolbox talk on 17 and/or 19 March 2023 and were informed of the changes to the policy. In my view, it was appropriate for Hutchison to raise the changes to the Drug and Alcohol Policy at the toolbox talks but more should have been done to train employees in the policy to ensure that they understood the changes and remembered them. This was particularly important given Mr Hughes’ evidence that the incidence of employees testing positive for alcohol under both the current and former policy was very rare. That there were just two incidents of employees drinking during meal breaks which prompted the change in policy indicates that employees rarely attended work after drinking alcohol. In such circumstances, it is quite likely that although employees viewed the Drug and Alcohol Policy as important, they did not regard the changes to the Drug and Alcohol Policy that were communicated at the toolbox talks memorable or significant, as the changes did not impact upon the usual practice of most employees of not drinking alcohol before work.”
The Deputy President continued her critique of using toolbox talks as a way of communicating these particular changes, perhaps giving rise to a new phenomenon which could be described as “toolbox talk fatigue” (at paragraph 225):
“The problem with using the toolbox talks as the only method of explaining the changes to the Drug and Alcohol Policy during work time is that employees routinely attended toolbox talks before every shift. As such, it could not reasonably be expected that they would remember every single issue that was discussed during a one year period where they attended more than one hundred such meetings, particularly as the toolbox talks only went for three to four minutes, according to Mr Moon. I believe that employees would have been more likely to retain information about the changes to the Drug and Alcohol Policy if there had been a dedicated training session where their knowledge of the changes was tested, including the number of hours they would need to be alcohol free to ensure a reading of 0.00 when commencing work. There should also have been signed confirmation from each employee that they had read and understood the changes to the policy. It is important that employees are aware of what is required to have 0.00 BAC, particularly as employees work shift work, and unlike a person who works during the day only, may find themselves attending work after socialising with family and friends.”
The Respondent did put up posters and distribute flyers in relation to the change in the policy but this did not do much to advance its position, especially as there was still a sign with outdated information (the 0.02 limit) on the human resources notice board (at paragraph 227):
“I accept that Hutchison has posters and flyers around the Port Botany Terminal which state that the cut off level is 0.00. However, there was no evidence before me about the extent to which employees read these posters and flyers. The posters and flyers may well be a useful source of information for a person who is looking to ascertain key details about the Drug and Alcohol Policy. However, if an employee already believes that they are aware of this information or they are not interested or have no need to obtain it, it seems likely to me that such employees will just walk past posters without stopping to read them. If any employee stopped to read the poster on the human resources noticeboard, they would have been incorrectly informed that the cut off level for alcohol was 0.02. Mr Hancock gave evidence that it was this noticeboard that he regularly reviewed.”
With respect, as a practical matter, an employer may be able to readily adduce evidence as to the number, location and content of posters displayed and flyers distributed, but evidence about the extent to which employees read and take note of such posters and flyers would be much harder and somewhat impractical to collate and submit in a hearing. It brings to mind the belief that while many copies of Professor Stephen Hawking’s “Brief History of Time” were bought and then proudly displayed on home bookshelves, how many were actually ever read? (The suspicion is they largely gathered dust next to similarly pristine copies of “Ulysses” and “War and Peace”.).
Deputy President Wright summed up her views as to why she thought the communication steps taken by the Respondent were inadequate and inappropriate (at paragraph 228):
“Having regard to the material before me, I believe that the steps which Hutchison took to communicate with employees about the changes to the Drug and Alcohol Policy were inadequate and not appropriate for employees who operate machinery and do not regularly use computers at work. The fact that the WHS Committee made certain recommendations to Hutchison about the way that the changes should be communicated does not relieve Hutchison of its obligations to ensure that employees are properly informed and trained about policies, particularly one as important as the Drug and Alcohol Policy. Given the evidence that toolbox meetings take three to four minutes, it is likely that only one or two minutes were dedicated to informing employees about the changes. Hutchison rightly places a high degree of importance on the Drug and Alcohol Policy so it is difficult to understand why Hutchison invested so little time communicating the changes to employees. Such actions on the part of Hutchison had the potential to diminish the importance of the policy in the eyes of employees.”
This naturally raises the question of what the Respondent should have done to effectively communicate the change in the policy to the Applicant and other affected employees. Deputy President Wright helpfully provided that guidance (at paragraph 229):
“At the very least, there should have been a dedicated training session in relation to the changes, including the steps that employees needed to take to ensure that they were compliant with the Drug and Alcohol Policy when attending work. The training should have tested the knowledge of employees about the policy and employees should have been required to acknowledge in writing that they had attended the training and understood the requirements of the policy.”
Critically, in this case the Deputy President held that the Applicant was not aware that the cut off level for alcohol had changed from 0.02 to 0.00 in March 2023 when he breached the policy on 31 March 2024. If it was found the Applicant had been aware of the change in the policy it would have rendered the failings in communication and training of the policy moot. The temporal proximity between the change in the policy and the breach was a factor that supported the inference being drawn the Applicant was unaware of the change at the time of the breach.
Observations
There are some observations that can be made from the case:
- Communicate Policies Clearly and Effectively: For an employer to rely on a policy, or a change to a policy, to dismiss an employee, it needs to be able to demonstrate that the employee has read and understood the policy (or change to the policy). This is best done by obtaining a specific acknowledgment from the employee to this effect. If this is not achieved the employer will need to persuade the FWC to draw an inference that the employee has read and understood the policy or amendment to the policy. The employer should put itself in the shoes of the target employees and use the communications channels and methods that work best to effectively convey the message to that employee cohort. The strategies adopted in marketing communications to reach prospective customers (such as selecting appropriate communications channels and platforms having regard to target demographic) should be applied to inform employees of policy matters. Employers should not (to use the old newspaper expression) “bury the lede”. If there is an important message to be conveyed, don’t tease it or hide it – put it in neon lights and make it front and centre in any communication.
- Training: There should be effective training in the policy or policy variation. In this regard, another expression comes to mind, “the boy who cried wolf”. If the policy or policy variation is significant (particularly if it relates to safety), ensure it is emphasised in training and given its own dedicated session rather than including it in meetings that address more mundane, less significant matters, where it could be buried and ignored (a victim of the aforementioned toolbox talk fatigue).
- Speak the Language of the Buyer: While it was not an issue in this case, it nevertheless serves as a prompt that the terms of a policy or variation should be clear, unambiguous and capable of being understood by the employees to whom it applies. In the FWC decision of Eptesams Al Pankani v Western Sydney Migrant Resource Centre Limited [2023] FWC 557 Deputy President Easton found that a policy on which the employer relied to dismiss an employee was “legalistic, obtuse and unsuited to the particular workforce” specifically observing that the terminology in the relevant clause was “…legalistic, complex and more commonly found in a commercial or government contract than in a document used by workers in a migrant assistance agency. Clause 12 might make sense to copyright lawyers and some IT specialists, but probably no one else.” The dismissal was found to be unfair.
When it comes to promulgating policies (or variations to policy), effective communication and training is key. While the FWC has set the bar high for employers, the cases also offer practical guidance to employers in the steps that can be taken to be able to effectively implement policies that can then be relied upon to take appropriate disciplinary action for breach.
