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 himself.
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 environment
- 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 history.
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.