Australia: Getting tough on drugs and alcohol at work: it is not as straightforward as you may think

Under the Work Health and Safety Act 2011 (NSW), every employer has a duty to eliminate risks to the health and safety of its employees.

As a result, you might think that employers have the right to take whatever steps they think are appropriate to ensure that their employees don't turn up for work while under the influence of drugs and/or alcohol.

Surprisingly, though, the legal position on this issue isn't always clear. We are still seeing industrial disputes and unfair dismissal claims where employees and unions are challenging employer actions in tackling the work-related risks of drugs and alcohol.

This is because there is tension between the basic principles that underpin the regulation of workplace health and safety and the notion of fairness.

The tension between managerial prerogative and the notion of fairness

Managerial prerogative is the unfettered freedom to do as a business thinks fit without any outside interference.

On the whole, industrial commissions recognise this freedom, but they insist that the balance should not tip towards imposing conditions that are unjust and unreasonable.

In Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW) (1984) 295 CAR 188, the principle was clearly stated: subject to legislative restraints on an employer, a commission will 'not [lightly] interfere with the right of an employer to manage [its own] business unless [it] is seeking from the employees something which is unjust or unreasonable'. In applying this principle, the commissions seek to achieve industrial fairness between the parties.

In cases dealing with unfair dismissals, industrial commissions are also obliged to consider the notion of fairness, which allows mitigating and personal circumstances to be used in deciding that a valid dismissal is actually harsh or unfair.

Let's take a look at some recent cases in this area in order to establish how employers can usefully approach this issue.

Can an employer take a one-size-fits-all approach to drugs and alcohol in the workplace?

In Endeavour Energy v Communications, Electric, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others [2012] FWA 1809, the employer proposed the uniform imposition of a blood alcohol concentration (BAC) level of 0.02 for all staff.

The union argued that such a uniform standard was unjust and unreasonable. It proposed instead that all employees (which included office staff and receptionists) should be subjected to a BAC level of 0.05 (subject only to the legislative restrictions that apply to P plate drivers (0.00) and drivers of heavy vehicles (0.02)).

The tribunal agreed with the union and stated that it thought it was 'unreasonable to impose an across the board level of 0.02 per cent BAC on all employees ... merely because some employees are engaged in high-risk activities where such a level is justified'. It concluded: 'There is simply no need for a "one size fits all" approach.'

Obviously, the tribunal's decision is an alarming one from the point of view of an employer.

After all, there are plenty of studies on the detrimental impact of alcohol on performance when the BAC is above 0.02. It would also make sense, due to the regulatory pressure on employers to create a strong safety culture and to eliminate risk, for employers to be given the appropriate latitude to determine their own workplace culture and rules, especially when it comes to drugs and alcohol.

Any employer, including councils, will be pleased to hear that this attitude may now be out of date and that there is support for the view that employers have the right to impose a uniform BAC for all employees.

When similar arguments to those in Endeavour Energy were advanced recently by a union wanting to implement a uniform 0.02 BAC level for all staff, the Commissioner initially hearing the dispute notification told the union sternly:

I am surprised to find that an organisation, which no doubt is very strenuous in defending the safety and health of people in the workplace, as you do, and you should do, would object to a more strenuous level of safety being imposed upon employees in a given workplace.
I will tell you, I, for my part, congratulate council on taking a step in the right direction in respect of an important health and safety issue. I can't see anything wrong with this at all. Indeed, I think, for my part, and this is just an observation, that an employer would be entitled to insist on 0.00 in the workplace without causing any difficulty in an industrial sense.

Can an employer dismiss an employee who played no role in causing an accident but was under the influence of drugs?

In Albert v Alice Springs Town Council [2017] FWC 73, the facts were as follows:

  • At 7.00 am on a Wednesday, the employee started his shift at Alice Springs Town Council.
  • At 7.15 am, while driving a council truck, the employee was involved in an accident when the other driver ignored a give way sign and collided with the council truck.
  • The police attended the accident.
  • The council employee was tested for alcohol and returned a negative reading. The employee appeared unimpaired and the police did not do a drug test.
  • The Council did do a drug test, and the employee returned a result 73 times above the Council's cut-off level.
  • The employee said that he had smoked cannabis on the previous Sunday evening and thought it would by now be out of his system.
  • The Council dismissed the employee six days later.

When the Commission looked at the case, it noted that there were defects in the process effecting the dismissal but focused on the substance of the matter. 'At the time of the motor vehicle accident Mr Albert was obviously driving a significant sized truck on a public road. That he was not at fault in the accident is not relevant; instead what is relevant is that he was driving while under the influence of a drug ... I am satisfied that the ... Council was entitled to consider the circumstances as an extremely serious breach', the Commission said

It concluded: 'The seriousness of his [the employee's] actions outweigh the procedural faults of the Town Council.' Had the procedural faults been remedied, it said, they would have been unlikely to affect or alter the ultimate outcome.

Can an employer dismiss an employee who played no role in causing an accident but was under the influence a drug taken for medicinal purposes?

In Shane Clayton v Coles Group Supply Chain Pty Ltd [2016] FWC 4724, the facts were as follows:

  • Coles had a 'zero tolerance' drug and alcohol policy.
  • The employee consumed cannabis before attending work.
  • The employee was involved in a forklift incident that was not his fault.
  • After testing positively for drugs, the employee said the drug use was for medicinal purposes.

It is worth noting that, in Harbour City Ferries Pty Ltd v Toms [2014] FWCFB 6249, a case that involved a ferry captain who had attended work while affected by drugs in circumstances where there was a zero tolerance policy, the Full Bench of the Fair Work Commission stated:

As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor ... It does not need to have a discussion with any relevant insurer, litigant or passenger's legal representative about those issues. What it wants is obedience to the policy. Harbour City never wants to have the discussion.

In the Coles case, the Commission said that Coles could impose a 'zero tolerance' policy, especially when it allowed self-reporting and provided support for workers. In its view, there was no excuse for the employee to attend work and to operate a forklift when impaired by drugs.

As an employer, you should act responsibly

As an employer, don't let the idiosyncrasies of our industrial system deter you from taking a tough stance on the risks of drugs and alcohol in the workplace.

It is better to be sure, than sorry. Preserving workplace safety should be your main priority and should guide any policy you decide to adopt.

Ensure that you educate your employees, and that there is a supportive framework in place to deal with any problems they are facing. This will also mean that, if necessary, you can deal sternly with any breaches of policy.

It is also worth noting that the most recent decisions support employers who have taken action to provide a safe workplace and to eliminate any risk.

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