Advice needed before employee dismissals

Mellor Olsson Lawyers


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Employers need be very careful with employee dismissals and to exercise diligence and fairness in their procedures.
Australia Employment and HR
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With recent changes to employer obligations, employment law has become an issue which has captured widespread attention across various sectors. There was a recent decision of the Fair Work Commission involving the farming sector which caught our attention.

In Baydon Johnson v Faulkner Farming Pty Ltd the Commission found that a farm worker had been unfairly dismissed.

Baydon Johnson, who served as an Assistant Manager for Faulkner Farming at one of its properties, was dismissed following allegations of attending work under the influence of alcohol.

The incident which led to the dismissal of the worker followed a night of heavy drinking. The Commission found that the worker drank at the pub, then drank on the way home and then continued drinking at home and likely consumed 12-15 standard drinks. The next morning he was due to be at work at 7:00 am but did not arrive until 7:40 am after being contacted by his employer.

Faulkner Farming dismissed the worker on the basis that he had attended the farm whilst under the influence of alcohol and this amounted to misconduct. Faulkner asserted that the worker's actions were in breach of the Alcohol and Drugs Policy he had signed, which stated that "It is forbidden for any employee to start work or return to work whilst under the influence of alcohol or drugs'.

In reaching its decision, the Commission found that there was no evidence provided to demonstrate that when the worker attended at the farm he was under the influence of alcohol. It appears that at least part of the reason for the Commission coming to this conclusion was that the person who witnessed the behaviour of the worker was not called to give evidence at the hearing.

As a consequence of the dismissal being deemed to be an unfair dismissal, the Commission had to consider whether it was appropriate to reinstate Mr Johnson and/or make the employer pay him compensation. The Commission determined reinstatement was not appropriate, but compensation was. It determined the amount of compensation to be paid by looking at what he would have been paid if he had continued to work, subtracting what he had earnt from a new job, and considering any other relevant circumstances. The Commission ordered Faulkner Farming to pay compensation of $4,488.85 plus $693.42 in superannuation to Mr Johnson. This amount was not as significant as it could have been as Mr Johnson had commenced new employment within a few weeks of being dismissed.

There are a few take-aways from this case for employers.

The first is that it is important to have policies in place. Whilst the employer in this instance was unsuccessful, it was evident that the policy provided the employer with the ability to take the action that it did. The issue was that it did not have the evidence to demonstrate that the employee was under the influence and in breach of the policy.

This then feeds in to the second take-away for employers, which is making sure that there is sufficient evidence to take the action. In this instance there needed to be something more to demonstrate that the worker was under the influence. Whilst this may vary in each instance, the types of things which might assist are people making detailed file notes of his/her observations at the time, including detailing why they consider the person is still under the influence, or using tools such as a regularly calibrated breathalyser.

The outcome of the case highlights the importance of taking proper steps when dealing with employees and the need for employers to exercise diligence and fairness in their procedures and to consider obtaining advice before dismissing employees.

This article was published in The Stock Journal on 9 May 2024.

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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