Australia: Termination of employees for breach of drug and alcohol policies

Last Updated: 20 February 2011
Article by Warwick Ryan

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.

Swaab Attorneys was the highest ranking law firm and the 13th best place to work in Australia in the 2010 Business Review Weekly Best Places to Work Awards. The firm was a finalist in the 2010 BRW Client Choice Awards for client service and was named the winner in the 2009 Australasian Legal Business Employer of Choice Awards.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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