Fair Work Australia ('FWA') recently heard a claim
made by an employee who believed he had been sacked unfairly after
he turned up for work in what appeared to be a drunken state.
Mr Dawson worked as a truck driver of Cartage Australia for
approximately seven months, when he turned up for work on 19 March
at about 4.30am, visibly under the influence of alcohol. On his
arrival at the workplace, Mr Dawson logged on to his
employer's system in his usual manner so that he could
complete his paperwork and begin his shift. The paperwork included
Mr Dawson certifying that he had a Blood Alcohol Content of 0.00%.
Mr Dawson's actions indicated that he was ready, willing
and able to work.
His manager who was on duty together with two other colleagues
gave evidence that they could smell alcohol on his breath and that
he appeared to be unsteady on his feet and slurring his words.
Mr Dawson was sent home by his Manager and sacked two days later
– he was given notice in writing and one week's
pay in lieu. He received no warning or indication that his
employment was potentially in jeopardy between the time he was sent
home and the time of the actual dismissal.
The employer did not have a testing kit onsite which may have
been utilised to confirm suspicions that the employee was under the
influence of alcohol at work.
FWA agreed with Cartage Australia's decision to dismiss
the employee on the basis of the employee's behaviour,
namely that he reported for duty and was ready and willing to work
with alcohol in his system which was in breach of the
company's drug and alcohol policy and against Victorian
State law which stipulates that truck drivers are required to have
BAC of 0.00%.
However, FWA found that the dismissal was unjust and
therefore unfair for the following reasons:
The company's drug and alcohol policy did not stipulate
'zero tolerance' providing that any breach would lead
to an automatic dismissal but rather stated that employees may be
counselled, given a formal warning or terminated on a finding of
breach of policy
The employee was not given an opportunity to respond. During
the two day time span between the breach and notice of termination
Mr Dawson was not told by his employer that they were considering
firing him as a result of his action. If he was told that there was
a chance he could be terminated, he could have responded by
visiting a doctor or police station to demonstrate that he did not
have alcohol in his system, with a view to defending and protecting
Cartage Australia's subjective observation that Mr Damon
was under the influence of alcohol and in breach of both the
company's policy and State law was not found to be
sufficient – suggestions were made that perhaps if a test
kit was on site and utilised to give a true reading that confirmed
the employer's suspicions, Cartage Australia may have had
grounds for immediate termination.
What does this mean for employers?
Dealing with employees and compliance issues with Drug and
Alcohol Policies in the workplace is a current, ongoing and complex
issue. Non-compliance with such policies involves serious safety
issues and in the majority of circumstances a breach of such
policies can constitute a valid reason for dismissal so long as it
is not harsh, unjust or unreasonable in the circumstances.
To ensure compliance employers should:
Have a written policy in place communicating the
employer's zero tolerance in relation to substance abuse at
the workplace or in circumstances that would affect an
employee's capacity to work or cause a non-safe working
Provide training and information sessions about the dangers of
being under the influence of drugs and alcohol at the workplace and
the ramifications for employee's if they are found to be
under the influence at work.
In situations where a contravention has occurred employers need
to ensure they:
Conduct a reasonable investigation to determine what
circumstances are relevant to the determination of the outcome
Notify employees as to the specific reason for dismissal
Show or fully describe to employees the evidence on which the
decision is to be made
Give employees a fair opportunity to respond to the allegation
of misconduct or breach of policy
Allow employees to have a support person present at any
discussions in relation to dismissal
Take into account any mitigating factors, including work
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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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.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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