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Blowing a number at work, Should you be dismissed? How to avoid dismissal

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Blowing a number at work, Should you be dismissed? How to avoid dismissal, Unfair Dismissal Australia

Many companies have a clear policy on alcohol and drugs in the workplace. It goes without saying that employees under the influence of drugs or alcohol, in a work setting, will have an impaired judgement. Consequently, an employees’ impaired judgement may place their co-workers or themselves in danger. Zero tolerance drug and alcohol policies are paramount for companies who are in a high risk or safety critical work environment. Thus, more often than not employees can be dismissed for blowing a number or testing positive for an illicit substance, regardless of their excuse or justification.

In Marshall Rushton v Giacci Bro Pty Ltd,[1] the Fair Work Commission upheld the dismissal of a truck driver who blew a number but blamed it on throat lozenges. The employee worked as a full-time truck driver carting lithium ore and hence, the Company set out the lawful and reasonable instruction that employees were to attend work and perform work free from any potentially performance impairing drug or alcohol influence. To enforce this policy, all transport workers are required to complete a breath test before they start every shift.

On 17 December 2020, the employee failed to comply with the requirement to undergo a pre-shift blood alcohol test (BAC) and when he did, some two hours later, he returned a BAC reading of 0.013. The Applicant was subsequently dismissed on 18 December 2020, following a disciplinary meeting.

The employee argued that he had consumed three-quarters of a 10-pack of Anticol cough lozenges to counter his dry throat and smoked a cigarette, which may have affected the breathalyser reading. Nevertheless, the employee later admitted that he had been drinking alcohol the night before but he “went to bed early enough to sleep it off”. In response to not undertaking a pre-shift BAC test, the employee argued he had concerns about the hygiene of using the hand-held breathalyser at the port, due to COVID-19. Furthermore, the employee argued that he had received inconsistent treatment as in his 20 years of service, he could only recall the dismissal of one driver for a positive breathalyser reading.

The Fair Work Commission held that there was a valid reason to dismiss the employee as his misconduct was manifestly serious and in clear breach of the lawful and reasonable instructions that had been provided to him regarding BAC testing. In regards to the employees’ defenses, the Fair Work Commission was not satisfied that the lozenges or cigarettes invalidated the test as there was “insufficient evidence” to support this. In regards to the employees concerns about the hygiene of the breathalyzer during COVID-19, Deputy President Beaumont noted that the employee had not complained about this prior, had it been a genuine concern of his.

In addition, Deputy President Beaumont was not satisfied that there had been inconsistent treatment as the Company does issue warnings when employees return their first or second non-negative BAC test result, and that subsequent non-negative BAC test results can, and do, lead to the termination of employment. Furthermore, the employee had received other warnings relating to breath testing. Thus, in addition to there being a valid reason for dismissal, the Fair Work Commission held the dismissal was not harsh, not unjust and not unreasonable in the circumstances.

Although the Fair work Commission held that there was a valid reason due to the breach of the lawful and reasonable instructions that had been provided to the employee regarding the Company’s BAC testing policy, as with any policy, they need to be consistently applied throughout the organization. If the policy contains procedural steps that an employer must follow before dismissing an employee, it must do so strictly, otherwise the employee’s termination may be found to be harsh, unjust or unreasonable despite the employer having a valid reason to dismiss.

Although this is not the case in Marshall Rushton v Giacci Bro Pty Ltd,[2] this is what the Fair work Commission found in Morcos v Serco Australia Pty Ltd [2019].[3]

On 16 March 2019, Mr Morcos was on his day off, not due back to work until 21 March 2019. At approximately 4:45 pm, Serco’s Operation Service Centre contacted him to offer a shift commencing that evening, which he accepted. Mr Morcos stated that he was often contacted to work shifts on his days off, which he normally accepted.

On the day in question, he had consumed two beers during the afternoon and was mistakenly of the belief that he would be at the required level of 0.00 by the commencement of the shift. Clocking in at around 5.40pm, Mr Morcos underwent a random alcohol breath test. His first reading was 0.037 and the second, 10 minutes later, was 0.032. He was then told to go home. He left the work site and drove home. Mr Morcos stated that there was no discussion about his ability to drive home.

On Sunday 17 March 2019, Mr Morcos was contacted by the call centre and was asked to work a night shift, which he accepted. He worked from 6:00 pm to 6:00 am the following morning. He was not asked about his fitness to work, nor did he undertake any alcohol testing prior to commencing the shift on 17 March 2019.

On 20 March 2019 he was stood down from work pending an investigation. On 26 March 2019, Mr Morcos received a letter notifying him of a disciplinary meeting on 28 March 2019, which he attended. On 1 April 2019, he provided a written response to the allegations regarding his conduct.

On 17 April 2019, he received a letter advising him of a meeting to be held on 18 April 2019. He attended this meeting, where he was told he was summarily dismissed. Deputy President Bull held that there was a valid reason for the dismissal related to the Applicant’s conduct being that Mr Morcos agreed to attend work despite knowing.

Having found that a valid reason for the dismissal exists, the Commission is obliged to consider the other factors contained in ss.387(b)-(h) of the Act. As stated by the Full Bench in Container Terminals Australia Limited v Toby:[4]

“In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable.”

Deputy President Bull also found that the Policy that accepts employees may test positive to alcohol between 0.01 and 0.05 and receive a written warning rather than be dismissed unless other serious misconduct is involved. The applicant has provided examples of such employees. In addition, Mr Morcos consumed alcohol on his rostered day off, as opposed to doing so knowing he was rostered to work the same or following day and Serco invited Mr Morcos to return to work the following day and commence another 12-hour shift, despite having tested positive the previous day.

The fact that Serco had still invited him to work an additional 12-hour shift commencing the following day, despite being aware of Mr Morcos’ positive reading was particularly telling in the Deputy President’s rejection of Serco’s argument’s that Mr Morcos should not be reinstated. The details of the additional shift were sent to Mr Taylor at 9:10 am on the morning after the incident. Serco failed to explain why it had asked Mr Morcos to work an additional shift. Mr Morcos was reinstated with an order to maintain continuity of employment and his period of continuous service.

This case demonstrates the importance for employers, including staff with the power to dismiss, to understand what they are required to do in disciplinary proceedings and in particular to be familiar with the ins and outs of relevant policies, particularly for drugs and alcohol. A “zero tolerance” policy will not necessarily mean dismissal in the context of an employees’ impeccable record and a relatively minor “infringement”.

If you find yourself in difficult circumstances, give us a call, at A Whole New Approach P/L as you can see from the above cases, its not straight forward

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[1] [2021] FWC 3634.

[2] [2021] FWC 3634.

[3] [2019] FWC 7675.

[4] [2000] Print S8434 at [15].

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