"Drink-working" – drugs and alcohol in the workplace

24 June 2019

From time to time employers are faced with challenging situations involving drug and alcohol-related employee misconduct. There is a common view that it can be very difficult for an employer to lawfully take action in response to these situations, and that employees frequently “get away with” this type of conduct. Pleasingly, however, the Fair Work Commission (FWC) has recently determined a number of unfair dismissal cases involving drugs and alcohol in the workplace, finding in favour of employers. The cases provide useful reminders about how employers can ensure valid reasons are established and a procedurally fair process is followed, so that appropriate action can be taken promptly when work-related drug and alcohol use is uncovered.

Drugs, pornography and hacking – appropriate workplace behaviour?

Imagine this: allegations are made that one of your IT technicians has supplied drugs to colleagues, accessed pornography at work, sent the directors’ confidential documents outside the company and hacked into his colleagues’ computers. He learns an investigation has commenced and hacks into the network to remotely lock out the entire workplace. The investigation finds he distributed drugs in the workplace and made multiple breaches of the company’s security of information policies. Is it fair to dismiss him?

Clearly, yes! The FWC found the employee’s sale of prescription (as opposed to illicit) drugs in the workplace was a valid reason for dismissal, let alone the security-related allegations that were found proven. But importantly, even in this case where the conduct clearly warranted dismissal, a thorough internal investigation also took place before the decision to dismiss was made. The FWC placed great weight on the findings of the investigation – reinforcing the importance of procedural fairness in defending unfair dismissal claims.

A few vodkas for the road

What if your business operated in a safety sensitive industry? A worker expresses concerns about a co-worker’s behaviour who is then breath-tested and returns a positive result prompting an internal investigation. The employee admits to downing quarter of a one litre bottle of vodka during her shift and states it was not stolen from work, but brought from home.

The FWC upheld the dismissal, finding that consuming alcohol while on duty in a safety sensitive industry clearly met the test of being sound, defensible and well founded. In this case the misconduct was described as “far from a trivial misdemeanour”, but again the Commission noted the importance of procedural fairness before taking action to terminate. In this case the employer undertook an investigation into the alleged misconduct before holding a disciplinary meeting where the employee had a union support person present, remaining diligent in ensuring the employee was afforded procedural fairness in order for the dismissal to be lawful.

The morning after the night before

Again, imagine your business operates in a safety sensitive industry. An employee is working away and one day does not report for duty. You learn he has been hospitalised, having collapsed on the bathroom floor of a trendy bar. His blood alcohol reading is equivalent to consuming 14 standard drinks but the employee blames the bar’s previously unknown practice of “free-pouring”.

The FWC ruled that dismissal for misconduct involving a breach of safety policies was a valid reason for dismissal even if the employee did not intend the breach, but was simply reckless, negligent or misjudged their conduct. In this case although the employee claimed he didn’t know about the “free-pouring” practice and consumed his normal amount, he was reckless, negligent or misjudged the situation leading to his breach of the policy and the FWC ruled that was enough to warrant dismissal.

Ultimately, the FWC found the employee’s claim that he only had five drinks to be inherently implausible and unbelievable and held the employer’s dismissal was a proportionate response to such a serious breach of the company’s policies and procedures.

Take home points

These recent cases provide reassurance to employers that the law is there to support them taking action against employees who engage in misconduct. However, it is important to remember the employers in these cases were each successful in defending the unfair dismissal claims because they took time and care in assessing whether there was a valid reason for the dismissal and ensuring a procedurally fair process was followed in investigating the alleged misconduct and effecting the dismissal. In cases of serious behaviour, it is sometimes tempting to dismiss quickly because the misconduct seems obvious and there is an understandable desire to remove the problem from the workplace. However, it is always important to take a deep breath, not cut corners, and ensure that all the necessary procedural steps are followed to place yourself in the best position to defend a possible claim.

How can we help you?

HWL Ebsworth Lawyers has advised employers extensively on their work health and safety duties relating to drugs and alcohol in the workplace, including advising employers when allegations of misconduct arise, advising on disciplinary action and preparing tailored drug and alcohol policies.

Please contact us for advice on investigations and disciplinary action or to develop a drug and alcohol policy suitable to your business.

This article was written by Clare Raimondo, Partner, Alice Woods, Associate and Michal Bergander-Florek, Solicitor.

Clare Raimondo

P: +61 8 8205 0565

E: craimondo@hwle.com.au

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