Zero tolerance drug and alcohol policies are paramount when working in a high risk or safety critical work environment. However, as with any policy, they need to be consistently applied throughout the organisation. If the policy contains procedural steps that an employer must follow before terminating an employee, it must do so strictly, otherwise the employee's termination may be found to be harsh, unjust or unreasonable despite the employer having a valid reason to terminate. This is what the Commission found in Morcos v Serco Australia Pty Ltd [2019].
Morcos was a long standing, full-time Detainee Service Officer at the Villawood Immigration Detention Centre.
On 16 March 2019, Morcos (on his rostered day off) was asked to pick up an additional shift later that afternoon. Morcos accepted the shift but failed to declare that he had consumed a few beers at lunch.
Serco Australia Pty Ltd had a zero-tolerance Drug & Alcohol policy.
Before Morcos started the shift, he was selected to undergo a random breath test. Before undertaking the test, the collector asked whether he had consumed any alcohol that day. Morcos replied that he had one beer with lunch. When Morcos returned a positive result (0.03), he disclosed that he actually had three beers.
He was immediately stood down and sent home that day. Morcos drove home as he was under the legal limit and attended work the next day. A few days later, Serco summarily terminated Morcos' employment because he:
- accepted an additional shift without declaring he had alcohol, knowing that he was required to have no alcohol in his system before attending work;
- knowingly misinformed the collector of the number of drinks he had when he undertook the test;
- did not take reasonable care of the health and safety of himself or those around him as he did not have a zero-alcohol limit; and,
- knowingly accepted a shift after consuming alcohol and knowing that it was Serco policy to have a zero-alcohol reading.
Morcos was 67 years of age at the time of the termination and prior to the incident, had an unblemished disciplinary and performance record.
Decision
Deputy President Bull found that Serco had a valid reason to terminate Morcos' employment – that being said, he had accepted a shift knowing he had alcohol in his system when he knew he was required to have zero. However, the decision to terminate was unreasonable because Serco's D&A policy, stated that
"...where the Worker returns a reading of between 0.01 and 0.05, the Worker will be stood down from their work duties immediately and will be given a formal warning at the commencement of their next shift. Another positive reading of above 0.01 may result in disciplinary action (including dismissal) ...".
It was apparent that Morcos' manager was unfamiliar of the details of the Drug and Alcohol Policy and had incorrectly applied it to the situation, proceeding to a termination rather than issuing a warning. Further, the Commission found that Morcos' conduct was not sufficiently serious to justify summary dismissal and he was reinstated to his position.
Key take-aways for employers
It is important for employers, including staff with the power to dismiss, to understand what they are required to do in disciplinary proceedings and in particular to be familiar with the ins and outs of relevant policies – a "zero tolerance" policy will not necessarily mean dismissal for a first, relatively minor, infringement.
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.