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:

  1. 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. 
  2. 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). 
  3. 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.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

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