AMMA welcomes the recent decision of the Fair Work Commission upholding the dismissal of an employee who returned to the workplace while in an intoxicated state in an attempt to sleep at work.

This decision represents a step in the right direction for the Fair Work Commission, ensuring workplace health and safety protocols that are in place for good reason are not undermined.

Background – drunken employee returns to workplace to sleep

The applicant was employed as a crew member with Inco Ships.

The applicant had left the ship he had been working on earlier that day and went to the pub with another crew member, where he consumed approximately “four or five” beers.

He returned to the Port of Geelong at around 10pm and attempted to gain access to the ship so he could sleep on board and awake for his shift the next day.

The security officers at the gatehouse to the refinery jetty area prevented him from entering due to his visible intoxication, but not without difficulty. In attempting to gain access, the applicant “aggressively harassed two security guards for around 40 minutes.” He repeatedly badgered them to allow him access, dislodged the glasses of one security officer and attempted to scale the security fence. His behaviour was enough to cause the lone female security officer to call for support.

He called in sick the following day, leading the Commission to infer that he might have consumed “more alcohol than he acknowledges or recalls.”

Inco Ships fired the crew member for breaching its drug and alcohol policy, acting in an aggressive manner and failing to provide honest responses when asked about what had occurred.

Policies in place for good reason

Commissioner Gregory upheld the dismissal and supported Inco Ships’ zero-tolerance approach for alcohol in its work setting. The Commissioner found it was “reasonable to expect” the same standards to apply in relation to alcohol at the workplace regardless of whether employees are on or off duty.

The Commissioner recognised Inco Ships’ “strict standards and policies are in place for good reason”. Commissioner Gregory said that alternatives to dismissal, such as a warning, would send a message to other employees that while Inco Ships expects that its health and safety policies will be adhered to, employees will be given a second chance if they intentionally breach them.

Importantly, Commissioner Gregory also found the fact that the applicant had a young child and partner on maternity leave did not make the dismissal harsh.

Step in the right direction – reform still necessary

AMMA is hopeful this decision is a step in the right direction to stop the undermining of workplace health and safety protocols that have been put in place for good reason.

However, the Fair Work Act 2009 still gives Fair Work Commission members discretion to consider ‘any other matter’ they think is relevant to a termination.

AMMA chief executive Steve Knott has previously said “even though a valid reason for termination exists, and despite extensive and correct procedural processes being followed, FWC members can – and some do – exercise the discretion to determine a dismissal for a serious safety breach as ‘harsh’.

For more information on this matter or any workplace discipline or dismissal advice, contact your local AMMA office.