By Charles Power
Editor-in-Chief, Employment Law Practical Handbook
A recent Fair Work Australia unfair dismissal case highlights the importance of
fairness when enforcing a drug and alcohol policy (Shannon Dawson v Railway
Transport Services Pty Ltd T/A Cartage Australia [2011] FWA 4915).
In the case, a truck driver attending work for a shift at a cartage company was
sent home when his supervisor smelt alcohol on his breath. He was dismissed
because he had certified that his blood alcohol content (BAC) was zero.
Fair Work Australia ruled that it was reasonable for the supervisor to suspect
that the employee had a BAC over zero. Therefore, the employer had a
“valid reason” for dismissal.
However, the dismissal was found to be unfair because the employee was not
given “procedural fairness”.
Procedural fairness requires that if you are considering dismissing an employee
you need to inform the employee of the allegations made against the employee
and given the employee a chance to defend himself or herself.
According to FWA, in order to have given the employee procedural fairness in
this case, the company should have:
- told the employee when he was sent home that his employment may be terminated
for seeking to work with a BAC over zero (if this had been done the
employee could have undertaken a BAC test done at a doctors or police
station); and
- given
the employee an opportunity to provide evidence that he did not have a BAC
over zero.
As a result, the employee was awarded 7 weeks’ pay in compensation.
This case also highlights the importance of following
such policies in a reasonable manner.
In the above case, the company did not have a zero tolerance drug and alcohol
policy in that a breach of the policy did not automatically lead to dismissal.
Rather, the policy said that an employee who breached the policy may be
counselled, given a formal warning or have their employment terminated.
Commissioner Bissett stated that the fact that the policy allowed for
counselling, formal warning or dismissal should not be taken to imply that
dismissal could not take place for a single breach. An employer will, for
example, need to have regard to the specific circumstances of the breach of the
policy in order to determine what disciplinary action should be taken such that
the punishment fits the crime.
The drug and alcohol policy also provided for an investigation process
including discussing the matter with the employee, possibly requesting that the
employee undergo testing, being suspended etc. It also allowed for an
assessment of the presence of alcohol to be made ‘by observation’ where there
was no medical evidence. So in short, the policy ultimately allowed the company
to make whatever decision it felt was reasonable.
If you wish to rely on a breach of a policy as a valid reason for dismissing an
employee, the policy must be lawful and reasonable. In this case FWA noted that
a policy that prevented employees from driving a truck in circumstances where
this would be a breach of the law was lawful and reasonable. However
Commissioner Bissett criticised the provision in the policy that determined
whether an employee had alcohol in their system based on ‘observation’. The
Commissioner believed that the company should have maintained on-site breath
testing equipment, because this was more objective.
Commissioner Bissett also said that the Company needed to put a stop to the
practice of employees having a drink on-site when they finish their night
shift, particularly because the drug and alcohol policy indicated that alcohol
was not to be consumed on site except for approved ‘special occasions’.
The Commissioner said that the Company:
“should not pay lip service to its policy. If it is serious about drugs and alcohol at the
workplace it needs to take positive action to control drinking in the workplace;
and ensure that employees have access to breath testing facilities.”
Commissioner Bissett also observed that an employer who seriously applies a
drug and alcohol policy should ensure that employees are given access to breath
testing facilities, so that an employee’s blood alcohol content can be put
beyond doubt.