What obligations do employers hold to employees in
terms of protecting them from other intoxicated
Persons Conducting Business or Undertaking (PCBUs) have an
onerous duty to ensure, so far as is reasonably practicable, the
health and safety of workers and others in their workplace under
WHS laws. This includes the provision of a safe work environment,
information, instruction, training and supervision in relation to
WHS that extends to being under the influence of drugs or alcohol
at work. Workers also have an obligation under WHS laws to protect
their own health safety and that of others in the workplace. As
such, showing up to work under the influence may be a breach by the
worker of their WHS obligations as it is of the PCBU that failed to
It is also considered "serious misconduct" justifying
summary termination of employment for the purpose of the Fair Work
Act and associated Regulation to show up to work
"intoxicated". A worker is considered to be
"intoxicated" if his or her faculties are so impaired
that they cannot be entrusted with their usual duties.
In this context, what are 'reasonably practicable
steps' to protect the health and safety of
A drug and alcohol policy should generally be introduced to
regulate, if not eliminate, the use of drugs and alcohol in the
workplace. This policy should be based on a risk assessment
considering the risks associated with drugs and alcohol in the
particular workplace that it relates to. This assessment will
dictate what testing, if any, is reasonable and necessary in the
Are there any issues employers must be aware of when
Whilst organisations, courts and industrial tribunals seem to
accept D&A testing is generally an intrusion into an
individual's private life that blurs the boundaries between
home and work, it is accepted as the lesser evil if testing is
necessary to ensure the health and safety of workers and others in
the workplace. Clearly, this threshold issue depends on the nature
of the workplace and the level of influence that poses a risk such
that it should be considered on a case-by-case basis.
What's the current situation in regards to drug
testing in the workplace?
It was established the Fair Work Commission Full Bench in the
case of Briggs v AWH Pty Ltd (2013) that a refusal of an
employee to undergo D&A testing in circumstances where the
employee's employment contract referred to and required
compliance with the D&A policy was a refusal to obey by a
lawful and reasonable direction justifying termination of
employment. It is therefore important to assess the risks
associated with drug and alcohol use in the workplace, document a
policy that seeks to eliminate those risks, require compliance with
the policy and procedure as a term of the employment agreement and
consistently enforce non-compliance.
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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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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