A Full Bench of Fair Work Australia has confirmed that it was
not harsh, unjust or unreasonable for J Boag and Son Brewing Pty
Ltd (Boags) to terminate the employment of a
process worker within Boags' packaging department because the
worker had been charged with driving his vehicle with a blood
alcohol limit of 0.154.
Boags had a responsible drinking policy. The worker claimed that
the policy was unreasonable as it attempted to control his conduct
outside of working hours in circumstances where no harm was caused
to Boags. Boags claimed that the policy was adopted to safeguards
Boags' interests in the promotion of social drinking and to
protect Boags' reputation as a supporter of responsible
The Full Bench upheld the decision of Senior Deputy President
Kaufman finding that Boags' termination of the worker was not
in breach of the Fair Work Act 2009 (Cth). SDP Kaufman
stated that not every breach of a policy will provide a valid
reason for termination of employment. However in circumstances
where the policy is both lawful and reasonable and an employer has
stressed the importance of the particular policy to the business
and made it clear to employees that any breach is likely to result
in termination of employment, then an employee who knowingly
breached that policy will have difficulty making out a claim that
there is no valid reason for the termination.
Key lessons for employers
Employers should be aware that in some circumstances they may be
able to terminate the employment of employees for their conduct
outside of work. Generally, there must be a sufficient connection
between the conduct and the employment relationship. Having a
policy, like Boags in this instance, will help support the
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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