Can I Sack an Employee for Being Drunk on the Job?

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]

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

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

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