The Fair Work Commission has upheld a logistics company’s dismissal of an employee who returned a positive blood alcohol reading while on shift, breaching its drug and alcohol policy.

In her decision, Deputy President Abbey Beaumont rejected the employees’ argument that the positive reading may have been the result of menthol consumption after sucking on three-quarters of a pack of throat lozenges.

She further found hygiene concerns relating to COVID-19 were quickly dealt with.

The decision is a welcome outcome for employers in Australia’s resources and energy industry, which typically take a strict ‘no tolerance’ approach to drug and alcohol policy breaches.

Background – Inconsistent responses to supervisor

The applicant, normally employed as a truck driver for Qube subsidiary Giacci Bros, was working as a port supervisor at the time of the incident due to a work injury a year prior.

In December last year, the applicant originally refused to take a pre-shift blood-alcohol test before starting work at 4am due to hygiene concerns. This was a common concern amongst employees during COVID-19 as all were required to reach into the straw container prior to using the handheld breathalyser.

The applicant took his first breath test two hours into his shift and returned a reading of 0.013. He took a second test two hours later and returned a reading of 0.008.

In recounting the subsequent conversation with his supervisor, the applicant claimed he reported that he had not consumed bourbon, or any alcohol, on the night before his shift.

The applicant instead suggested multiple factors that may have decreased the accuracy of the tests. He said he consumed three quarters of a packet of Anticol lozenges and suggested the reading may be a menthol reading. He also raised the fact that he consumed a cigarette within 15 minutes of taking his second test.

However, these claims were contested by the supervisor’s evidence.

The supervisor said the applicant told him he had consumed four bourbons the night before and that he may have been “heavy handed pouring”.  He further claimed that the Applicant told him he went to sleep early that night in an attempt to “sleep it off” as he had done in the past with no issues.

When asked by the logistic supervisor to produce the lozenger packet, he could not.

In addition to the contested evidence regarding alcohol consumption, the Applicant contended in his unfair dismissal application that he was treated inconsistently with other employees.

He said he could recall only one other driver being terminated due to a positive blood alcohol reading. The applicant also contended that he was denied procedural fairness as he was not given an adequate chance to respond.

The company’s policies stated that port workers are not required to take a breath test before their shifts; however, all transport staff are. It also provided that if employees failed a second test, they are to be suspended and further discipline considered.

Dismissal not harsh, unjust or unfair – FWC

In her decision, Deputy President Beaumont found the company’s policies and conduct were reasonable, and that the applicant’s conduct constituted a valid reason for dismissal.

The Deputy President stated that both the two-stage testing requirement and the cut off level of zero appeared to be uncontroversial.

She found the company was entitled to enforce compliance with its drug and alcohol standards, and that the Applicant’s temporary position as port supervisor did not negate his requirement, as a transport worker, to be breath tested.

The Deputy President found both the menthol argument and the cigarette argument were flawed and that the logistic supervisor’s evidence was more compelling.

In relation to the COVID-19 hygiene concerns provided as a reason for not taking his first breath test at 4am, DP Beaumont was also unpersuaded. She found the company had already taken action to address these concerns prior to the incident, with evidence from the Applicant’s union representative that the issue was dealt with “pretty quickly”.

When considering the inconsistency issue, the Deputy President acknowledged it was uncommon for employees to be terminated the first time they blow over, however the company took into account the applicant’s disciplinary history which included several drug and alcohol policy breaches.

She accepted the Applicant was given numerous chances to change and was already satisfied there was a valid reason for dismissal on the basis of the first failed test.

When considering the procedural fairness, the Deputy President took into account the disciplinary meeting held the day after the incident attended by the Applicant and his supervisors.

Although the meeting was brief, the Deputy President was satisfied the applicant was given a chance to respond to the company’s concerns, noting this process does not require any formality. There was also nothing in the evidence to suggest the decision to terminate the Applicant was made prior to the meeting.

Therefore, the Deputy President found the blood alcohol testing requirement was lawful and reasonable, and the applicant’s behaviour was a clear, serious breach.

The Deputy President concluded that the company had a valid reason for dismissal, and it was not unfair, unjust or unreasonable.

Implications

This is a welcome decision of the FWC in relation to an employer’s right to enforce a strict approach to drug and alcohol policy breaches.

Irrespective of the novel ‘lozenge argument’, it is welcome to see many of the applicant’s “off the shelf” reasons for claiming unfair dismissal were rejected by DP Beaumont. These include claiming inconsistent treatment, a flawed process, WHS concerns (i.e. hygiene reasons for not taking the 4am test) and a lack of opportunity to respond.

It was also very welcome to see the FWC emphasise in this decision that its job is not to place itself into the shoes of employers and decide whether or not they would make the same decision, but rather to determine if the employer has a valid reason in connection with employees’ specific conduct, company policies and the process that followed.

The decision supports employers taking a strict stance against policy breaches for the safety of all their employees, and demonstrates employers’ prerogative to give lawful directions and enforce their compliance.

AMMA’s Workplace Advisory Team are highly experienced in drug and alcohol policy matters and all disciplinary procedures, including undertaking independent workplace investigations and managing discipline and termination actions.

Contact your local AMMA office to be put in touch with a workplace relations specialist near you.