Ter­mi­na­tion of employ­ees for breach of drug & alco­hol policies

In brief – FWA takes breach­es seriously

The pro­mo­tion of safe­ty in the work­place is an issue tak­en seri­ous­ly by Fair Work Aus­tralia (FWA) which has con­sis­tent­ly sup­port­ed employ­ers in ter­mi­nat­ing employ­ees who breach their drug and alco­hol policies.

Ter­mi­na­tion of employ­ees for breach­es of drug and alco­hol policies

In unfair dis­missal appli­ca­tions, FWA must base its deci­sion on whether or not there was a valid rea­son for the dismissal.

If an employ­ee has been ter­mi­nat­ed for con­tra­ven­ing a drug and alco­hol pol­i­cy, FWA will con­sid­er the following:

• Is there a law­ful and rea­son­able drug and alco­hol pol­i­cy in the workplace?
• Was the employ­ee aware of the drug and alco­hol pol­i­cy before the breach lead­ing to the employ­ee’s dismissal? 
• Has the drug and alco­hol pol­i­cy been applied con­sis­tent­ly in the workplace?

If the answer to these three ques­tions is yes, FWA will gen­er­al­ly find that there is a valid rea­son for the dismissal.

How­ev­er, it is impor­tant to note that although there may be a valid rea­son for the dis­missal, the employ­er must still sat­is­fy pro­ce­dur­al fair­ness require­ments, such as noti­fy­ing the employ­ee of the rea­son for the dis­missal and pro­vid­ing an oppor­tu­ni­ty to respond. The fail­ure to do so could alter the outcome.

MH v The Respondent

MH was employed in a coalmine as a truck dri­ver. The Respon­dent had a clear drug and alco­hol pol­i­cy which stat­ed that non-com­pli­ance may result in imme­di­ate dis­missal. This pol­i­cy was com­mu­ni­cat­ed to employ­ees through var­i­ous train­ing meet­ings and hard copies were also dis­trib­uted around the workplace.

MH reg­is­tered a blood alco­hol con­tent (BAC) in excess of 0.055 dur­ing a ran­dom test. He gave evi­dence that he had con­sumed nine stan­dard drinks after 4:30 pm the pre­vi­ous day, but believed there was no alco­hol in his sys­tem when he came to work the next day.

MH denied knowl­edge of the pol­i­cy after return­ing the pos­i­tive test. He was dis­missed even though anoth­er employ­ee who had pre­vi­ous­ly returned a BAC of 0.09 was mere­ly sus­pend­ed with­out pay for two days.

FWA found that MH was aware of the Respon­den­t’s pol­i­cy because of the range of mea­sures tak­en to com­mu­ni­cate it to employ­ees. FWA also reject­ed the argu­ment that the pol­i­cy had been applied incon­sis­tent­ly, not­ing that the employ­ee who was only sus­pend­ed had shown a self-aware­ness of the dan­ger he pre­sent­ed by vol­un­teer­ing to be tested.

Not­ing also that MH was noti­fied of the rea­son for the dis­missal, giv­en an oppor­tu­ni­ty to respond and allowed a sup­port per­son, FWA found that there was a valid rea­son for the dis­missal and reject­ed the claim.

Ley v Macma­hon Contractors

Mr Ley was employed by Macma­hon Con­trac­tors as a lead­ing hand under an Aus­tralian Work­place Agree­ment. This agree­ment stat­ed that con­tra­ven­ing the employ­er’s drug and alco­hol pol­i­cy could result in termination.

In March 2010 Mr Ley test­ed pos­i­tive for alco­hol and received a writ­ten warn­ing. This warn­ing empha­sised that any fur­ther breach could result in imme­di­ate dis­missal. Mr Ley also received a writ­ten copy of the pol­i­cy and signed a receipt acknowl­edg­ing that he had reviewed it.

Sev­en months lat­er, Mr Ley again returned a pos­i­tive test for alco­hol. Under the pol­i­cy, a pos­i­tive test required fur­ther test­ing 20 min­utes after the ini­tial test. This sec­ond test was car­ried out on a dif­fer­ent machine and Mr Ley returned a neg­a­tive result, sug­gest­ing that there was no alco­hol in his system.

In light of this incon­sis­ten­cy but in con­tra­ven­tion of the pol­i­cy which pro­vid­ed that no fur­ther action be tak­en if the sec­ond test returned a neg­a­tive result, fur­ther test­ing was under­tak­en, ver­i­fy­ing that Mr Ley did in fact have alco­hol in his sys­tem. He explained that he had had a few drinks dur­ing a char­i­ty event on the pre­vi­ous day and his employ­ment was terminated.

FWA found that although the employ­er had depart­ed from its pol­i­cy, this was not enough to ​“tri­umph over the sub­stance of what had occurred” – that Mr Ley had test­ed pos­i­tive for alco­hol. Fur­ther, as he was clear­ly aware of the pol­i­cy because of his pre­vi­ous con­tra­ven­tion, the sec­ond breach con­sti­tut­ed a valid rea­son for dismissal.

It was also found that Mr Ley had been noti­fied of the rea­son for the dis­missal and pro­vid­ed with an oppor­tu­ni­ty to respond. Accord­ing­ly, the unfair dis­missal claim was rejected.

Advice to employers

You need a drug and alco­hol pol­i­cy in your work­place to sat­is­fy your occu­pa­tion­al health and safe­ty oblig­a­tions. In order for the pol­i­cy to be effec­tive, it is advis­able that you ensure all of your employ­ees are aware of the pol­i­cy by dis­trib­ut­ing hard and/​or dig­i­tal copies of it and by con­duct­ing train­ing sem­i­nars which edu­cate staff about the con­tent and impor­tance of the pol­i­cy. Staff need to sign an acknowl­edge­ment that they have read and under­stood the policy.

You also need to ensure that the pol­i­cy is applied con­sis­tent­ly to all employees.

For fur­ther infor­ma­tion, contact: