Tuesday, 5 December 2017

What Do You Do With A Drunken Sailor? Terminating Employment for Breach of Company Drug and Alcohol Policy

An employee turns up to work drunk, before they are due to captain a ship weighing thousands of tonnes. What do you do? Do you have a Drug and Alcohol Policy you can rely on?

In a recent Fair Work Commission (FWC) case, a shipping Captain alleged he was unfairly dismissed after being terminated following a BAC reading of 0.047; a clear breach of the Company’s zero-tolerance alcohol policy.

At first instance, the FWC agreed with the Captain, finding that the Company hadn’t taken extenuating circumstances and the Captain’s unblemished work history into account. The FWC concluded that the Company could have chosen to take a less punitive approach.

However, importantly for employers, this decision was overturned on appeal*. The Company’s Drug and Alcohol policies were found to be clear and explicit in their requirements. Importantly:

  • the random testing was conducted in accordance with clear and reasonable procedures;
  • the policies established a zero-tolerance stance to alcohol and non-prescription drugs; and
  • the policy’s disciplinary procedures included dismissal as an option.

What If Past Policy Breaches Are Discovered?

In this case, it was discovered that the Captain had taken anti-depressants for periods of time during his employment, but had failed to self-report that medication. The failure to self-report was in breach of the Company’s Drug and Alcohol Policy.

The Commission found that the Captain, due to his senior management position, was responsible for ensuring that the Company’s policies were followed. Therefore, his previous failure to abide by the policy would have been reason enough to terminate his employment.

What Should Your Drug And Alcohol Policy Include?

When it comes to Drug and Alcohol policies, it is not a case of “one size fits all”. An employee’s obligations under Drug and Alcohol policies are all about fitness for work – that is, their capacity to perform their role safely.

Consideration must be given to the applicable risks present in the workplace and what standards are appropriate given the nature of employees’ work and the working environment.

Company policies, at the very least, should:

  • impose an obligation to be fit for work, and details of what that obligation involves (eg is it a zero tolerance for any alcohol? Are prescription drugs okay if they do not impair the employee’s ability to perform their role?);
  • impose an obligation for an employee to ‘self-report’ any drugs, prescription medicine or alcohol in their system;
  • provide clear details on when and how employees will undergo drug and alcohol testing, including the employer’s right to conduct random, critical incident and on reasonable suspicion testing; and
  • provide an explanation of the consequences of breaching the policy.

Your Drug and Alcohol policy should be very explicit in its obligations. Employees should clearly understand their obligations and what the consequences are for breach of those obligations. Further, as these policies and procedures relate to workplace safety, employers should consult with their workforce in developing and implementing these policies.

Before your ship runs aground, check your policy to ensure, at the very least, it addresses our suggestions above.

 

*This case remains under appeal. We will keep you informed with any relevant developments.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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