Enforcing Drug & Alcohol Policies in the Workplace – Employers’ Rights & Responsibilities

22 November 2017

Drugs and alcohol in the workplace present a complex issue for employers. Recent cases reinforce the importance of setting appropriate workplace policies and procedures when dealing with the subject, and also reflect the inherent difficulties in enforcing the standards that employers set. Whilst dismissing an employee who fails to meet those fundamental standards may seem like a reasonable reaction, employers should recognise that the Fair Work Commission (FWC) does not always view dismissal as appropriate, despite the failures of the worker to adhere to policy. Employers must carefully consider the individual circumstances of any matters presented to them, and find the right balance between upholding their health and safety obligations and respecting the rights of individual employees and procedural fairness when seeking to terminate.

What Constitutes a Valid Reason for Dismissal Where Alcohol is Concerned?

Such complexity was highlighted in the FWC’s recent overturning of an unfair dismissal decision. Here, a ship captain was dismissed after breaching his employer’s safety policies by consuming 10 beers the night before a shift and consequently registering a blood alcohol reading of 0.047 the following morning. The captain had been on a flight to Perth when he encountered a crew member connected with a former colleague who had abused and threatened the captain in a 2014 work incident, which was investigated but never entirely acted upon by the employer at the time, and resulted in the captain suffering depression and being prescribed medication. The captain responded to the encounter poorly, suffering high levels of trepidation and drinking heavily to calm himself, resulting in the breach of the alcohol policy when tested at work the following morning.

In the original finding, the dismissal was found to be harsh despite the employee being in breach of the zero tolerance policy. In her reasoning, commissioner Bissett found that while the captain’s reading was in breach of the zero tolerance policy and a valid reason for dismissal, she also found that there was a lack of adequate consideration of alternative disciplinary means such as education and rehabilitation. She found the dismissal to be harsh, especially after considering the part responsibility of the employer for the captain’s prior mental health issues.

On appeal, the full bench of the FWC overturned commissioner Bissett’s finding of unfair dismissal. The bench found that appropriate action by the captain would have been to have advised the employer of his potential lack of fitness for duty given his consumption of alcohol the night before. Given his position of seniority, the commission reasoned that it was not just his duty to adhere to the policies, but also his responsibility to ensure that the policies were implemented accordingly. The captain had also failed to notify his employer of his prescription to medication, which further breached the drug and alcohol policy and was out of the employer’s control. The matter has subsequently been remitted for rehearing at the FWC.

Importance of Safety and Responsibility as an Employer

Other recent cases have confirmed the primary importance of ensuring safety in the workplace, especially where high risk roles are concerned. In Shane Clayton v Coles Group Supply Chain Pty Ltd [2016] FWC 4724, Coles had a zero tolerance policy towards drugs and alcohol which the employee breached by testing positive for cannabis after being involved in a forklift incident. Although the employee claimed that the cannabis was for medicinal purposes, the FWC said that the employer’s zero tolerance policy was necessary under the circumstances. Given that Coles allowed self – reporting and provided adequate support to its employees, there was no reason for the employee to be impaired by drugs when operating a forklift.

Similarly, in Albert v Alice Springs Town Council [2017] FWC 73, it was held that an employee was not unfairly dismissed despite being denied procedural fairness. The employee was denied an opportunity to respond after he tested positive for cannabis and was involved in a car accident, however the seriousness of the worker’s misconduct was deemed to have exceeded the requirement for procedural fairness in this case. The FWC considered that greater procedural fairness would not have impacted the outcome due to the seriousness of the misconduct and, as a result, was able to overlook the shortcomings in the employer’s process.

These cases demonstrate the importance of prioritising health and safety in the workplace, especially where serious misconduct occurs. When disciplining an employee, it will be relevant to consider the position of seniority held by the employee and you should always look to adhere to procedural fairness requirements in effort to streamline your health and safety procedures. Consistent implementation of fair process and thorough policies will help to avoid the various costs of having complaints raised by employees and will ensure that health and safety in your workplace is prioritised.

Hentys Lawyers specialises in workers compensation claims management, assistance and advice and can assist and advise employers throughout the entire claim and legal processes.

Please contact our team for any such assistance that you may require.