Attending work under the influence of alcohol will likely justify dismissal. Indeed, under the Fair Work Regulations 2009 “serious misconduct” is defined to include an “employee being intoxicated at work”[1]. However, the standard of proof for intoxication is high, and as clearly detailed in the Fair Work Act, the criteria for considering the harshness of a dismissal is not limited to the validity of the reason. Workplace culture, inadequate policy provisions, and an individuals mitigating circumstances are but few of the considerations that play part in determining whether a dismissal is unfair.
The General Principles
When contemplating terminating an employee for alcohol related incidences you should give consideration to whether:
- the employee had knowledge that such conduct would result in their termination;
- there has been a repetition of the conduct;
- the conduct created an adverse impact on the safety of others;
- the employee was verbally or physically abusive whilst under the influence of alcohol;
- the conduct impacted on the reputation of the employer; and/or
- there is consistency in the disciplinary action taken against other employees who attend work under the influence of alcohol.
The existence of one, or more, of the above factors does not necessarily create a fair termination. More often than not an employee will raise circumstances in mitigation of their conduct which must be taken into consideration when determining the appropriate disciplinary action to apply.
What do the cases say?
In the case of Daley v GWA Group Ltd T/A Dux Hot Water [2], (‘Daley’) the Fair Work Commission held that the dismissal of a trade assistant with a blood alcohol level above the 0.02% policy limit was unfairly dismissed. Whilst the trade assistant agreed that the breach of the employers “Drug & Alcohol Policy” constituted a valid reason for termination, he alleged that dismissal was harsh in the circumstances. Of relevance to the Commission’s finding was the following:
- The employee had been employed for 16 years, during which he had not been subject to any form of disciplinary action or performance management;
- The employee had limited employment prospects. In particular, he was 55 years of age, lacked qualification and skill, and lived in a regional area;
- The employee’s breach was discovered as the result of a random test, not because he demonstrated behaviour indicative of being under the influence of alcohol;
- The employer’s Drug and Alcohol Policy recognised the circumstance where an employee may return up to three positive results prior to being terminated;
- The employee did not feel affected by alcohol when he attended work;
- The employee was accountable for his conduct; and
- Since the positive reading, the employee had stopped drinking, and provided evidence from his doctor in support of this.
The employee had received training on the policy and was aware of both the threshold for alcohol testing and that random testing would occur. Furthermore, the employee’s position required that he operate machinery. Notwithstanding this, the Commission found that the dismissal of the employee was harsh in the circumstances and ordered reinstatement.
“Due to his age, health and lack of education the effect of the termination upon him was more severe than it may have been on a younger, healthier or more highly educated employee. The applicant has demonstrated that he recognises the seriousness of the breach and has ceased to consume alcohol. In my view he deserves at least one opportunity to demonstrate that this is the case”.
Similarly, in John Ingham v Metro Quarry Group Pty Ltd [3] (‘John Ingham’) the dismissal of a maintenance worker who breached the employer’s “zero tolerance” drug and alcohol policy was found to be harsh on the basis of the following:
- His conduct was not wilful and deliberate;
- His conduct did not create a risk to the health and safety of his colleagues;
- The employer’s policy provided that an employee with a positive alcohol reading be sent home rather than be dismissed; and
- The employee’s blood alcohol level was relatively low.
Although the employee had previously received a first and final warning for a safety breach, the Commission considered the warning to be excessive in the circumstances and found that it could not be relied upon by the employer in justifying summary dismissal.
In contrast, in the case of Mr Corwynn Owens v Bynoe Community Advancement Cooperative Society Limited T/A Bynoe CACS Ltd [4] the Fair Work Commission held that the dismissal of an employee who attended work under the influence of alcohol was fair despite a flawed drug and alcohol policy.
The employer’s policy did not state that a positive reading would result in dismissal, but that employees who arrived at work under the influence of drugs or alcohol would be sent home. However, the dismissal was held to be fair on the basis of the following:
- Another employee had been dismissed for the same reason, and the employee had knowledge of this;
- While the written policy had not been shown to the employee, meetings were held whereby all employees were informed that drug and alcohol use would result in dismissal; and
- The employee held a position which required him to engage with young people who had or were exposed to drug and alcohol problems.
Recommendation
Employers should ensure that their Drug and Alcohol policies are lawful and reasonable, and clearly stipulate the disciplinary outcome that will result from a breach. Moreover, employer’s must ensure that employee’s are aware of the company’s position on alcohol consumption and have knowledge of the disciplinary action that will result from a positive reading.
When faced with alcohol related incidences, employers should:
- Ensure that company precedent is followed;
- Consider the nature of the work performed by the employee and whether their conduct created an adverse impact on the safety of others;
- Consider whether any reputational damage was caused as a result of the employee’s conduct; and
- Take into consideration an employee’s mitigating circumstances, including an employee’s length of service, disciplinary and performance history, and employment prospects. It is noted that the case law supports the position that in circumstances where an employee suffers a drinking problem they should be provided with the opportunity to demonstrate that they are seeking, and responding to, treatment [5].
[1] Fair Work Regulations 2009 (Cth) reg 1.07.
[2] [2011] FWA 6993.
[3] [2015] FWC 6472.
[4] [2016] FWC 5274.
[5] See, eg, Printing and Kindred Industries Union, WA Branch, Industrial Union of Workers v WA Newspapers (1987) WAIRC 523.
