The majority of employers will have a drug and alcohol policy that they expect their staff to adhere to, with some organisations choosing to input a drug and alcohol clause in the employment contract instead. Both have similar effects; they set out the expectations and standards around certain behaviour within a given organisation.

In a recent case before the Fair Work Commission, the employer sent an employee home for presenting as hungover on shift, subsequently dismissing him for a breach of their drug and alcohol policy which stated that an employee was not to be intoxicated on shift and should refrain, as an example of bad behaviour, from engaging in extended drinking the night before a shift.

It is important to note that the work was farm work, which is widely accepted as being perilous at the best of times, even more so when having consumed alcohol or illicit substances.

Background:

The employee visited their local pub on the afternoon of 3 January 2024 where they began drinking. They continued drinking, including once they had returned home.  It was estimated that the employee drank between 12 – 15 standard drinks.

The employee ceased drinking later that evening (although no clear time could be established) and went to bed at approximately 11:00pm.

At 7:43pm the same evening while the employee was drinking, they received a message alerting them that their start time the following day had been brought forward and they were now required to commence work at 7:00am on 4 January 2024.

The employee slept through their alarm the following morning and consequently was late to work, clocking in at 7:40am. The supervisor on shift reported that the employee appeared ‘disengaged and not wanting to be at work’.  The supervisor was of the impression that the employee was still intoxicated and sent the employee home.

On 5 January 2024 the employer met with the employee to discuss the issue.  Shortly after, the employee was notified that his employment had been terminated due to a breach of the company’s drug and alcohol policy, alongside poor performance (turning up to work late on 4 January 2024 was one of the factors contributing to this).

Arguments of the Parties:

The employer argued they had a valid right to dismiss the employee, highlighting that the employee’s conduct of drinking the night prior to work meant they would still, in all likelihood, have a blood alcohol content of above the legal range.  Considering the alcohol part of the policy was that no employer was to come to work even partly under the influence, the employer alleged that the employee had knowingly and willingly violated that policy.

The employee argued there was no real evidence of his blood alcohol level, nor was running late a significant basis for dismissal where his intoxication could not be proven.

Outcome:

The Commission found the employee was unfairly dismissed, despite accepting that he had drunk a significant amount the evening before. The Commission found it of specific relevance that the supervisor not only sent the employee home after he showed up late and appeared in a ‘disengaged’ state, but also allowed the employee to drive himself home, counterintuitive to the point of his alleged inebriation.

The Commission went on to say the employer had failed to lead strong or sufficient evidence as to the employee’s intoxication at work and that they could not merely suggest nor could the Commission assume, that the blood alcohol content of the employee remained an issue.  Relevantly, the employer did not call the supervisor as a witness to the proceedings, failing to lead evidence of the employee’s character and mannerisms on the date he arrived late.

Further, the Commission found the employer had insufficient evidence to allege intoxication, maintaining that the employer could have attempted to lead expert evidence as to the effects of the employee’s considerable drinking on their blood alcohol level by 7:40am the following day, however failure to do this and failure to call a witness, left little other than hearsay upon which the employer based their case.

Lastly, consideration was given to the employee being unaware of his early morning start time until after work hours, being notified after 7pm, less than 12 hours before the shift was to begin.

The Commission found the dismissal to be unfair, and ordered the employer to pay $4,448.85 less tax, alongside $693.42 in superannuation, to the employee within 14 days to account for loss of income suffered as a result of the dismissal.

Main takeaway:

When considering dismissing an employee for a breach of a drug and alcohol policy, the employer must be able to lead strong evidence to establish the specific breach, including of the employee being under the influence when they were at work.

Should you find yourself in the position where you may need to terminate an employee for whatever reason, PCS can provide you with advice or assistance in navigating the process.

Baydon Johnson v Faulkner Farming Pty Ltd [2024] FWC 1052

Isabelle Daley, Graduate Associate