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Policies and process fails employer in unfair dismissal case

An employee, believed to have been intoxicated at work, has been successful in her unfair dismissal application which was heard by the FWC earlier this year.

The incident that led to the dismissal of the employee centred on Melbourne Cup day in 2014.  The employee claimed that she had a 3 or 4 drinks in the period from 12.30pm on Melbourne Cup day to 9.30pm that night.  She was due to start work as a ‘chicken harvester’ at 12.30am the next morning.  She elected not to drive to work, given her consumption of alcohol during the previous day, but she still considered herself fit to attend for work.

The evidence was that after loading the first truck, the next truck had not arrived on time, and as was usual practice, the employee decided to get some sleep while waiting.  Evidently, the employee slept for longer than intended and missed the next lot of work.  The employer was alerted to the employee being apparently intoxicated.  It was the employer’s evidence that he noticed the smell of alcohol on the employee’s breath.  He asked whether the employee had been drinking and she said ‘no’.

After finding that the employee had been terminated, the Fair Work Commission was not satisfied that the employer had taken all appropriate steps to ‘objectively assess her condition’.  In fact, the employee was permitted to finish her shift, despite the concerns about her intoxication.  The FWC noted that there was no formal drug and alcohol policy, and further, even if the information available did constitute a formal policy, there was no ‘zero tolerance’ component to that information.

On that basis, the FWC found there was no valid reason for dismissal. The FWC also criticised the employer for not providing the employee with an opportunity to respond to the reasons for the dismissal.

Implications for employers: Employers must be able to substantiate the grounds upon which they rely in order to terminate an employee for serious misconduct.  In addition, the failure of the employer to have an appropriately worded drug and alcohol policy also contributed to the finding that was made.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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