Being a drunk isn’t ideal employee material. Except if you are employed as a wine taster (tough gig, but someone’s got to do it) being intoxicated in the workforce is generally deemed unacceptable by both society and employers.

If you have an employee who has shown up to work tipsy or high, or even failed a drug test, you do not necessarily have an automatic right to dismiss them then and there. As the following recent cases highlight, many factors will be considered if the validity of that termination is subsequently challenged in Court:

Sharp v BCS Infrastructure Support Pty Ltd [2015]

Here, the Full Bench of 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 Full Bench were less interested in the employee’s “out of hours” conduct, instead drawing attention to being influenced by the substance during work hours, particularly given the nature of his work and policies in place by his employer.

Dawson v Cartage Australia [2013]

Here, a truck driver turned up to work visibly drunk but still managed to log on to his employer’s system in his usual manner. He also supposedly certified that he had a Blood Alcohol Content of 0.00%, which was clearly not the case. The Fair Work Commission agreed with the employer’s decision to terminate the employee’s employment for professional misconduct, namely that he came to work while intoxicated, thereby breaching the company policy against drugs and alcohol, not to mention Victorian State law. However, FWA also found that the dismissal was unjust and, therefore, unfair (meaning the employee won the case) for several reasons, including:

  • The company’s drug and alcohol policy did not stipulate ‘zero tolerance’, but instead provided that employees may be counselled, given a formal warning or terminated on a finding of breach of policy. As a matter of fact, that policy was not found to have been followed.
  • The employee was not given an opportunity to respond. During the period between the breach and notice of termination, the employee was not told by his employer that they were considering terminating him. If he were told that there was a chance he could be terminated, the court found, he may have responded by visiting a doctor or police station to disprove the allegations, with a view to defending and protecting himself.

Conclusion

The lesson for employers is simple: Before you sack an employee for being drunk or high at work, look at applicable documents (including contracts, policies and any applicable law or regulation) and, if necessary, seek urgent legal advice.

Emma Jervis

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