In Hafer v Ensign Australia Pty Ltd  FWC 990 (“Hafer“) the Fair Work Commission has confirmed that breaches of Work Health and Safety policies can be a valid reason for termination of employment, and importantly, that a procedurally unfair dismissal may be justified when a serious safety breach occurs.
Ensign Australia Pty Ltd (Ensign) summarily terminated its employee, Mr Hafer, from a drilling rig after he tested positive to a random drug test for a zero tolerance drug policy. Mr Hafer had returned a positive result for methamphetamine, THC and amphetamine.
Mr Hafer was dismissed via telephone two days after returning the positive test, on the basis that the positive drug test breached Ensign’s “Fitness for Work — Drug and Alcohol Policy” (Policy).
No formal meeting was held with Mr Hafer about the positive result or the proposed disciplinary action. He did, however, have an informal opportunity to explain himself after the drug test.
Mr Hafer contended that his summary dismissal was harsh, unjust and unreasonable as Ensign had:
- Not explained the positive drug test result to him;
- Not conducted the test in accordance with the Policy;
- Not made a sample available to him; and
- Not properly investigated the test result.
Quite clearly there were some procedural fairness deficiencies. Ensign, however, asserted that the “very serious nature of the conduct” outweighed any procedural deficiencies. The Policy adopted zero tolerance towards drugs in the workplace and this was justified due to the high-risk nature of oil drilling work and associated heavy machinery.
Commissioner Platt dismissed the application for unfair dismissal and found that the lack of procedural fairness by Ensign was outweighed by the duty to provide a safe workplace. The Commissioner noted that while it would have been “preferable” for Ensign to put the allegations and proposed disciplinary result to Mr Hafer for his response, the result would, nevertheless, have been the same.
Lessons for employers
Breaches of safety policies can provide lawful grounds to dismiss an employee. However even when such a breach is established, in the ordinary course, employers are still required to afford procedural fairness to their employees before making any decision to terminate employment on the basis of a safety breach.
Employers must also ensure that their safety policies are enforced consistently and fairly.
The Hafer case demonstrates that where the safety and welfare of employees are at serious risk, summary dismissal in the absence of procedural fairness may be warranted. This is particularly the case in high risk workplaces (involving high risk plant and machinery) and when the basis for the summary dismissal relates to drug and alcohol use.
This decision reinforces the fact that it is always prudent to provide an employee with an opportunity to respond to any allegations before making a decision to terminate employment. Employers should ensure that policies and procedures regarding drugs and alcohol in the workplace are clear and up to date and detail the consequences of any breach. Policies and procedures should be routinely made known to all employees to ensure they are adequately trained on their obligations.
This article was written by Justin Le Blond, Special Counsel and Lily Schafer-Gardiner, Graduate at Law.