Workplace safety isn't just a boring box to tick off on your employee handbook. It's the invisible superhero cape that keeps us all from turning into workplace casualties. Whether you're slinging code at a tech startup or installing the latest fit out, we all share this universal truth: a safe workplace is a happy, productive one. It's the difference between sharing anecdotes with your colleagues over a cuppa and a run to the ER with lights and sirens.

To address safety, many employers will have a zero tolerance policy for breaches of alcohol and drug policies, which seems a reasonable position to take.  However, recent court decisions illustrate that that having a zero tolerance policy in place doesn't automatically imply that dismissal is the only appropriate response.

When it comes to unfair dismissal cases, the Fair Work Commission must look at whether the dismissal was harsh, unjust or unreasonable.  The following cases demonstrate how the FWC apply this criteria and how the process is not as black and white as you would imagine when it comes to zero tolerance.

Was it harsh?

First up, let’s look at the Trevor Purves v Queensland Rail.  As an employee of Queensland Rail, Trevor was subject to a zero blood alcohol level – this prescribed level was legislated under the Rail Safety National Law.  As many of us do, Trevor enjoyed a beverage or two after a long day at work.  One morning he was subject to a random alcohol and drug test where he tested .025.  Trevor’s employment was subsequently terminated.  Seems straight forward given the policy overlaid by specific legislation.

Trevor submitted an unfair dismissal application and given the nature of the industry and the regulatory duty that governed Queensland Rail, the FWC accepted that there was a valid reason for the dismissal. However, the FWC determined the termination was disproportionate to the gravity of the misconduct and therefore harsh, after considering a range of factors including the following:

• Trevor’s age (63), limited literacy and technology skills would negatively impact his ability to gain other employment.
  
• As Queensland Rail holds a dominant position in relation to all rail infrastructure in the region, Trevor would have struggled to gain employment with another rail employer as most were contracting to Queensland Rail.
  
• Trevor had worked for the company for over 40 years with an unblemished record.
  
• The impact to both Trevor and his family.
  
• The fact that his evening routine had never once resulted in a positive test result previously.

Ultimately, despite the zero tolerance policy, the dismissal was found to be unfair and Mr Purves was reinstated.

Lawful and reasonable direction

Now let’s take a look at Matthew Wyss v Omnigrip Direct.  In this instance, a zero alcohol policy was in place and it was very clear that employees could NOT drive a company vehicle while under the influence of alcohol.

Matthew was a manager and the business was an engineering and construction company.  In this instance, a project had been completed and Matthew suggested a celebratory team lunch was in order.  The CEO agreed but made it very clear that no alcohol was to be consumed at the lunch by any employees in attendance and that included Mr Wyss.

Unfortunately for Matthew, he erroneously decided that he had finished work for the day and ordered himself a beverage.  Following Matthew’s lead, other employees also imbibed alcoholic beverages.  Later that day, Matthew was contacted by a client which resulted in him needing to attend a work site.  Both Matthew and the other employees who had been drinking, drove company vehicles after the lunch. 

Upon learning of these actions, Mr Wyss was summarily dismissed for serious misconduct.

In this case, the failure to follow a lawful and reasonable direction as well as the breach of the company’s drug and alcohol policy meant that the FWC accepted there was a valid reason for the dismissal.  The FWC did not believe it was harsh, unjust or unreasonable for a number of reasons:

• Regardless of what Matthew thought, the working day had not ended.  The lunch was being held on company time and he and the other employees were well aware that they would be driving their company owned vehicles after the celebration.
  
• As a senior employee, Matthews behaviour was inconsistent with is level of responsibility and was a breach of his duty of fidelity to his employer.
  
• It was made very clear by the CEO that no alcohol was to be consumed at this particular celebration.  In not adhering to this instruction, Matthew failed to follow a lawful and reasonable direction from an employer.

The dismissal was upheld.

Lessons to learn

It’s important to look at the lessons we can learn from these cases. Yes, a zero tolerance policy can still be the basis of a fair dismissal but it’s a timely reminder that the Fair Work Commission will consider mitigating factors to ascertain whether or not the dismissal was harsh, unjust or unreasonable. 

Taking a cue from the cases above, when thinking about letting go of an employee due to a violation of a strict alcohol and drug policy, employers should take these factors into account to gauge whether the dismissal might be seen as unfair:

• Is the role of the employee and/or the overall work environment have a strong focus on safety?
  
• Are your policies well communicated to all employees?  Remember that best practice is to deliver regular training and ensure you have a process by which all policies have been read an acknowledged by all employees.  There’s no point having great policies that no one knows about, and no one knows how to access them.
  
• Are your policies clear and easy to understand? They must be drafted in such a way that all obligations and consequences are clearly outlined.
  
• How long has the employee been with the company? Dismissing someone who's been around a while might look harsh, but it’s not a definitive factor in whether a dismissal will be upheld or overturned .  An argument can be made that longer service means they should be well versed in company policies and the consequences of any breaches.
  
• What precedent has been set when dealing with similar breaches with other employees?  If different actions were taken, what were the mitigating facts that drove the decision?
  
• Was there procedural fairness in handling the situation?  There are many instances of the FWC overturning a dismissal despite agreeing that there are valid reasons for it to occur if procedural fairness has not been afforded to the employee.

Like anything in life, there are shades of grey even when it comes to a zero tolerance policy so it’s important to have your policies in place to establish clear ground rules in the first instance.  If you need to review or introduce clear drug and alcohol policies, or run drug and alcohol testing in your workplace, contact the HR Staff n’ Stuff team to discuss.