Over recent months, the Fair Work Commission (FWC) has decided on a number of cases involving disputes over breaches of workplace alcohol and drug (AD) policies.
In Benjamin Unicomb v SESLS Industrial Pty Ltd (U2024/8974), the FWC found that the termination of an employee for breaching the AD policy was unfair, and that employers need to consider if employees have understood the policy before the employee is sacked.
Unclear AD policy
Compensation has been awarded to an employee by the FWC after it decided that his termination was unfair, given that the employer failed to consider his ‘genuine misunderstanding’ of its new AD policy.
SESLS Industrial Pty Ltd initially called the multi-skilled operator into the office for covering the in-cabin safety camera while he drove at 35kp/h. The employee subsequently provided a positive result to benzodiazepines, which were prescribed to him by his psychiatrist and noted in his Medical Management Plan (MMP). His MMP had a notation under the ‘Medications’ section that he would use them while working. However, there was no mention of the drug in the ‘Recommendations/Restrictions’ section of the MMP.
The FWC found the AD policy had no blanket prohibition against the employee using the drug outside of work hours or that the drug could not be in his system during work hours. The FWC found that in the employee’s mind, “he was being told he could not take the drug whilst he was at work.”
The FWC also stated that conditions in his MMP were “not as clear as they could have been” when read in conjunction with the company’s AD policy. It concluded that conflicting requirements in the MMP and the AD policy led to a “genuine misunderstanding” by the worker, and the employer failed to consider this before his dismissal.
AD policy not explained to staff
In Lee Witherden v DP World Sydney Limited, the FWC commission described DP World’s AD policy as “inadequate” and reinstated an employee dismissed for testing positive to cocaine. The 49-year-old employee admitted to using cocaine heavily for three days whilst off work, before taking a 24-hour break and returning to work.
The FWC found that DP World failed to explain to the worker the significance of ‘cut-off levels’ of drugs and that workplace drug testing also finds inactive drugs in the person’s system, including when the person is not intoxicated. The FWC found the AD policy inadequate, and that DP World failed to “explicitly advise the employee that its policy is intended to manage risks associated with hangover effects in addition to intoxication”.
Lesson for employers
These cases show that AD policies need to:
- clearly state what is being tested for and whether trace amounts will result in a positive result;
- be written in plain English, so that employees will understand and interpret policies correctly;
- be explained to staff and be the subject of regular training, including when updates or changes occur; and
- Include employee consultation and consultation with other relevant stakeholders when being changed.
Contact us
If you are an employer seeking advice on amending or implementing your alcohol and drug policies in your workplace, please contact a member of our Workplace Relations group.
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