Many employers will have a “zero tolerance” policy in their workplace, particularly in relation to breaches of alcohol and drug policies. However, it is important to keep in mind that the existence of a zero tolerance policy does not automatically warrant dismissal.
In this article, we provide a recap of some of the recent unfair dismissal cases before the Fair Work Commission (FWC) in the context of a breach of zero tolerance alcohol and drug policy which resulted in different outcomes after the FWC considered the mandatory criteria in each case to determine whether the dismissal was harsh, unjust or unreasonable. Particularly, the cases highlight that the concept of ‘harshness’ can be complex for employers as it often relates to mitigating circumstances that are outside the employer’s control.
Case one: Trevor Purves v Queensland Rail Transit Authority T/A Queensland Rail [2022] FWC 3343
Background
- Mr Purves was employed by Queensland Rail as a track worker.
- Queensland Rail’s alcohol and drug policy required zero blood alcohol concentration (BAC). The prescribed zero limit was also legislatively required under the Rail Safety National Law.
- The night before work, Mr Purves drank his routine amount of alcohol which he had been following for years. The next morning, Mr Purves was subject to a random alcohol and other drugs test at work before commencing work, where he was tested 0.025 BAC.
- Mr Purves was dismissed for a breach of the policy.
Consideration
- The FWC accepted that there was a valid reason for dismissal, considering the nature of the industry in which the employer operates and the regulatory duty imposed on the employer and Mr Purves’ employment, including that Mr Purves was a track worker who was fulfilling safety-critical tasks within the rail industry.
- However, the FWC found that the dismissal was disproportionate to the gravity of the misconduct and therefore harsh, after considering the following factors:
- difficulty for Mr Purves to gain other employment within the area of his skills and experience considering:
- Mr Purves’ age, being 63, and his limited literacy and technology skills
- the employer’s dominant position in control of rail infrastructure in Queensland which may affect Mr Purves’ ability to gain employment with another employer in rail infrastructure who may be contracting to Queensland Rail.
- Mr Purves’ 40 years’ length of service with an unblemished record
- the impact of dismissal on Mr Purves and his family
- the fact that Mr Purves followed his usual drinking routine on which he was tested numerous times the following day but never tested positive
- the alcohol limit for a person to legally drive (i.e. 0.05 BAC) in comparison with Mr Purves’ record (i.e. 0.025 BAC) the policy did not make termination the only disciplinary option in the case of breach and has room for exceptions.
Outcome
- The dismissal was found unfair and Mr Purves was reinstated.
Case two: Hancock v DP World Brisbane Pty Ltd [2022] FWC 1406
Background
- Mr Hancock was employed by DP World Brisbane Pty Ltd as a stevedore.
- The employer’s alcohol and other drugs policy required that its employees be free from drugs and alcohol. For tetrahydrocannabinol (THC), a compound formed in the body after the consumption of cannabis, the policy provided 15ug/L as the cut-off level and any reading more than 60ug/L as “high range”.
- More recently, the employer adopted a “zero tolerance” approach to employees presenting for work under the influence of drugs or alcohol.
- After returning from leave, Mr Hancock was randomly selected for a drug and alcohol test after seven hours of working his shift and received a positive result for THC with a level of 562ug/L.
- Mr Hancock was summarily dismissed for serious misconduct.
Consideration
- The FWC found the policy to be lawful and reasonable and the breach of the policy was a valid reason for dismissal.
- The FWC did not accept that the dismissal was harsh, unjust or unreasonable, after considering the following:
- Mr Hancock’s role, being a stevedore, was safety-critical in nature
- Mr Hancock’s compliance with the policy was essential to the fundamental requirements of his employment
- despite the drugs being consumed “out of hours”, the close proximity of the consumption of the drugs in relation to Mr Hancock presenting for work and the subsequent test result
- Mr Hancock was aware of the employer’s drug and alcohol policy, as well as the requirements of the policy, including that he should not attend work with illicit drugs in his system
- while Mr Hancock argued that the policy was unclear whether a breach of the policy would likely result in termination of employment, including that it was 15 pages long and stating that the termination “may” result from a positive test, the FWC considered that it was known to Mr Hancock that termination was an outcome in the policy.
While the FWC acknowledged Mr Hancock’s long-term employment of 25 years, the FWC also stressed that a significant period of service also demands a high level of compliance with the policy and cannot be a “licence” to serious misconduct, therefore not a determinative factor in overturning dismissal matters.
Outcome
Case three: Matthew Wyss v Omnigrip Direct Pty Ltd [2022] FWC 3174 (1 December 2022)
Background
- Mr Wyss was a manager at Omnigrip Direct Pty Ltd, an engineering and construction company.
- The employer had a zero alcohol policy, including not to drive company vehicles under the influence of alcohol.
- To celebrate completing a project, Mr Wyss suggested a team lunch to the CEO of the employer. The CEO agreed but directed that no alcohol was to be consumed at the lunch and Mr Wyss was not to allow other employees to drink.
- Mr Wyss thinking that he had finished work for the day, ordered himself a scotch and dry. Other employees also consumed alcohol at the lunch.
- Mr Wyss, and other employees, drove company vehicles after the lunch.
- Later that afternoon, Mr Wyss was contacted by a client and had to attend the work site to assist contractors to complete some tasks.
- Mr Wyss was summarily dismissed for serious misconduct.
Consideration
- The FWC accepted that there was a valid reason for dismissal as Mr Wyss failed to follow a lawful and reasonable direction and breached the employer’s drug and alcohol policy.
- The FWC found that the dismissal was not harsh, unjust or unreasonable, having regard to the following:
- Mr Wyss’s working day had not yet ended. Mr Wyss had finished his work for the day but he remained on the company’s time. Further, he and the other employees still had to drive their company vehicles after the lunch
- Mr Wyss did not show any remorse nor display any insight into the seriousness of his conduct
- Mr Wyss’s conduct was inconsistent with his responsibility as the senior employee and his behaviour was a breach of his duty of fidelity to the employer
- while alcohol was allowed in previous work events, the CEO had a discretion to permit limited alcohol for approved functions and events but it was clear on this occasion that the CEO directed no alcohol to be consumed
- Mr Wyss failed to follow a lawful and reasonable direction from the employer
- the three other team members who drank alcohol at the lunch were only given final warnings, but Mr Wyss’s conduct was much worse than those employees as he ignored the CEO’s direction and was in a more senior position. Also, other employees expressed contrition.
Outcome
Lessons and key takeaways
These cases demonstrate that while a breach of a zero tolerance policy is likely to provide a valid reason for dismissal, the FWC will also consider other relevant matters to determine whether the dismissal was harsh, unjust or unreasonable, which is a heavily fact-based exercise.
As considered in the above cases, when deciding to terminate an employee’s employment based on a breach of a zero tolerance alcohol and drug policy, employers should consider the following factors to assess the risks for the dismissal being found unfair:
- is the employee’s role and/or work environment safety-sensitive? Consider not only the role at the time but also what the role could involve or what the employee could be asked to do
- is the employee aware of the policy and the consequences of a breach of the policy? Best practice is to provide regular training and reminders of the workplace policies to employees, including requiring the employees to read and acknowledge that they understand the terms
- what does the policy say and is it clearly drafted? While the policy does not need to say the termination is the only option in the case of breach, it must be clearly drafted for employees to easily understand their obligations and the consequence of the breach
- how long was the length of service of the employee? While this is not a determinative factor, the termination of a long-standing employee carries a higher risk of being perceived as harsh, subject to other factors. On the other hand, long length of service also means the employee should have been well aware of the employer’s policies and the consequences of the breach
- if there were other employees who have breached the same policy at the time or in the past, were they treated differently? If employees were treated differently for the same conduct, the employer should be able to distinguish the basis for why they were treated differently
- when compared to the industry or legal standards, where does the company standard and/or the employee’s test result sit? The FWC may take into account the industry or legal standard when weighing gravity of misconduct
- was the employee afforded procedural fairness? The employee should always be notified of the reason for termination and given an opportunity to respond.
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Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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