Drinking in the Workplace Costs Employee Job: Lawyer

A case involving an employee of a large South Australian wine producer last month should have caught the attention of everyone in the drinks trade, because it involved that ever-present industry hazard of an employee being over the limit in the workplace. By Walter MacCallum, Director, Aitken Lawyers

The employer had recently implemented a trial workplace drug and alcohol policy at one of its plants in Berri. The policy aimed to maintain a safe environment, compliant with all legislation, while promoting rehabilitation and raising awareness of the problems associated with drug and alcohol use in the workplace.

After the random testing procedure began, as part of the trial policy, the employee concerned recorded a series of positive readings for alcohol above the requirement of 0.00 per cent, which applied to employees working in ‘high-risk’ roles.

After his first positive reading, the employee was given a warning and as per the policy, was offered counselling. He was also placed on a mandatory pre-shift and post-shift testing procedure for one month.

During that period, further positive readings were made and further warnings were given, culminating in an alcohol reading well in excess of the 0.00 per cent threshold. As a consequence, after more than 20 years with the company, the 58-year-old employee was terminated.

The employee lodged an unfair dismissal claim with Fair Work Australia. The employee, represented by his union, argued that the drug and alcohol policy was a trial and it was not fair or appropriate to apply it for the purposes of dismissal and that the employee believed that, if he undertook the breath test and tested positive, he could elect not to clock on for his shift that morning and could return home without being in breach of the policy.

It was also argued that there were particular extenuating circumstances leading to the employee’s consumption of alcohol including an ongoing back injury.

The Commissioner found that there were no indications of any significant performance or conduct issues arising from the employee’s work with the company other than the breach of the policy.

The Commissioner considered at length the drug and alcohol policy, the fact that it was a trial policy and its interplay with specific written warnings provided to the employee after the positive readings had occurred.

The Commissioner found that the policy was being trialled at the Berri plant with the intention of being rolled out across the company shortly thereafter and was not, as the employee’s representatives submitted, a policy trialled for implementation generally.

The Commissioner found that the policy itself lacked comprehensive detail to deal with particular scenarios and, in particular, the disciplinary consequences of positive readings being returned. He found that the intended operation of the policy was not clear and not in final form and the consistency, clarity and fairness of the approach adopted by the employer in dealing with the employee was a relevant consideration.

This was important because the uncertainty about some elements in the application of the policy were relevant as to whether or not the employee deliberately breached its requirements.

Ultimately, Fair Work found that the policy was not intended to be definitive and that the employer made it quite clear to the employee what was required of him and what the consequences would be for further breaches in its written warnings to the employee. These, the Commissioner found, officially clarified the disciplinary process that would be adopted reasonably as a consequence of the breach of the policy.

Unfortunately for this longserving employee, Fair Work found that his termination was not unjust, unfair or harsh, that the company had acted in a procedurally fair manner and that the policy (which had been implemented after consultation with the relevant union representatives) was sufficiently clear and combined with the written warnings, provided a valid reason for the employer to terminate the employee’s employment.

So we have to realise that the times are a-changing. Even the time-honoured tradition of having a drink after work, with your work buddies, was prohibited under this policy and alcohol was not permitted to be consumed on site, even after shifts had been completed, unless approved by management.