Reading time: 5 minutes

Being drunk on the job is not ideal employee material and has practical impacts to your business’ productivity. Generally, being intoxicated in the workforce is unacceptable. However, if you have an employee who has shown up to work intoxicated, high or even failed a drug test, you do not necessarily have an automatic right to dismiss them. This article will unpack the law regarding dismissal of an intoxicated employee and share some examples of how the Court or the Fair Work Commission has dealt with these dismissals. It also shares practical ways to handle alcohol and drug usage at the office. 

What Does the Law Say?

The Fair Work Act lists intoxication at work as serious misconduct. Specifically, the law clarifies that intoxication is when an employee is impaired to the point that they cannot do their usual duties.

Typically, serious misconduct is a valid reason for summary dismissal. Summary dismissal is when you terminate a worker’s employment contract without notice. However, this dismissal can be seen as harsh if it was disproportionate to the conduct. As an employer, you will typically need solid proof of the misconduct before terminating the employee. 

Notably, there are instances where an aggrieved employee can make an unfair dismissal claim against you. Likewise, you may find yourself in legal trouble. The following section looks at some cases surrounding the termination of employment due to intoxication and whether it was valid. 

Employment Essentials Factsheet

As an employer, understand your essential employment obligations with this free LegalVision factsheet.

Download Now

Case Law 

As the following cases will demonstrate, the law will consider a variety of factors when deciding whether an employee’s termination was lawful. 

Sharp v BCS Infrastructure Support Pty Ltd [2015]

Here, the Fair Work Commission upheld the termination of employment of an employee who returned a positive test for cannabis in a random drug test. The Commission was less interested in the employee’s “out of hours” conduct. However, they were concerned with the employee being under the influence during work hours, particularly given the nature of his work and policies in place by his employer.

Willis Australia Group Services Pty Ltd v Mitchell-Innes [2014]

Mr Mitchell-Innes became intoxicated the night before a work conference and appeared intoxicated the next day. As a result, his employer considered his actions as amounting to misconduct, leading to his summary dismissal. 

Mr Mitchell-Innes filed for unfair dismissal, and the Fair Work Commission agreed that the dismissal was unfair. 

Importantly, the conduct must be proportionate to the consequence i.e. summary dismissal. 

In this case, it was not. Additionally, Willis’s policies only allow summary dismissal if there was reputational damage to the company or where the behaviour endangered other colleagues. Since there were no clients who witnessed Willis’ behaviour, it could not damage Willis’ reputation. Hence, the Commission found it not appropriate to dismiss Mr Mitchell-Innes.

Mr Luke Urso v QF Cabin Crew Australia Pty Limited [2018]

Mr Urso, a flight attendant, voluntarily became intoxicated and had to go to the hospital, meaning he could not attend work the following day. Consequently, QF stood Urso down with four weeks pay while they investigated the misconduct. Following this, Urso was terminated. Urso filed an unfair dismissal claim.

After appeal, the Commission decided that the dismissal was not harsh, unjust or unreasonable. They decided that QF took the appropriate steps to substantiate the allegations and allowed Urso to respond. Additionally, being a flight attendant requires a high standard of safety.

Indeed, before you terminate an employee for being drunk on the job, you must weigh up the conduct and its impact on your business. Importantly, consider:

  • What are the current policies regarding alcohol and drugs at work?
  • Did the employee’s behaviour impact the reputation of the company or the wellbeing of others?
  • Did you take the appropriate steps to substantiate the allegations?

Dismissals for Intoxication at Work

Firstly, ensure your policies and employment contracts clearly outline your employee’s employment expectations. It may even be wise to add provisions relating to your ability to hand down summary dismissals for drug and alcohol usage while on the job. 

Indeed, once you have adequate policies in place, be sure to follow them accordingly. Further, communicate those policies to employees and possibly even provide ongoing training. For example, in Willis Australia Group Services Pty Ltd v Mitchell-Innes, a more precise policy could have made the dismissal more appropriate. 

Another method to manage an employee who shows up drunk on the job is to allow for flexible and less severe responses to misconduct. For example, perhaps it is more suitable to provide:

  • warnings; 
  • training; or
  • mandatory counselling.

These softer approaches allow your business to retain quality staff who may have just made a mistake. By providing warnings or training to staff, rather than dismissing them without offering them a chance to explain themselves or better their behaviour, you can foster a supportive working environment that promotes personal and professional development.

Finally, it is also worth conducting a thorough investigation of the claims of misconduct. An investigation can be an effective way to speak to other workers and understand their perspective on how another employee’s drunken behaviour may affect the workplace environment. 

For example, Mr Luke Urso v QF Cabin Crew Australia Pty Limited highlights the standard of good procedure, whereby QF took a methodical approach by:

  • standing down Urso with pay whilst investigating;
  • sending him an allegation letter; and
  • allowing him to respond.

Key Takeaways

When an employee shows up drunk on the job, handling the issue is not as simple as firing an employee. Indeed, there are specific procedures and policies that you need to follow. Without following the law, you may be liable to a claim of unfair dismissal.

If you have questions about your drafting policies or contracts, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What behaviour amounts to intoxication?

The Fair Work Act clarifies that intoxication is when an employee is impaired to the point that they cannot do their usual duties. Such conduct can amount to serious misconduct, and as an employer, you can take steps to deal with this behaviour. 

Can I dismiss an employee who shows up drunk on the job?

Given intoxication is a form of serious misconduct, you can use this as a reason for summary dismissal. This is when you terminate a worker’s employment contract without notice. However, you will typically need solid proof of the misconduct before terminating the employee. Otherwise, you risk being liable for an unfair dismissal claim.


COVID-19 Vaccines In The Workplace

Thursday 10 February | 11:00 - 11:45am

Can you compel employees to have a COVID-19 vaccine? Understand your rights and responsibilities as an employer. Register today for our free webinar.
Register Now

Preventing Wage Underpayment In Your Franchise

Wednesday 16 February | 11:00 - 11:45am

Learn how to identify and prevent wage underpayment in your franchise. Register today for our free webinar.
Register Now

How to Prevent and Manage Commercial Contract Disputes

Thursday 24 February | 11:00 - 11:45am

Learn how to prevent and manage common commercial contract disputes. Register today for our free webinar.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

Our Awards

  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer