A timely reminder for all employers to review their policy documents to ensure they:-
- are clear;
- implemented consistently;
- managers and employees have a thorough understanding of the policy application.
A recent Fair Work Commission decision resulted in the reinstatement of an employee who attended for work after consuming alcohol.
In this case, an immigration detention centre officer was on a rostered day off when his employer contacted him asking if he could work a shift commencing in the next hour. After arriving at work, the employee was selected for a random breath test and received a reading of 0.037.
Despite this result, the employee was offered and accepted a 12 hour night shift the following day.
It was three days later when the employer commenced an investigation into serious misconduct for breach of employment contract, enterprise agreement an company policies.
As a result the employee was terminated.
In making it’s decision the FWC commission considered the following:-
- a drug and alcohol policy that was contradictory and inconsistently applied;
- the policy stated that employee’s returning a test between 0.01 and 0.05 should be stood down and given a written warning at the start of their next shift, and termination could occur only after another positive reading was recorded. The policy further referred to ‘proven intoxication’ however did not provide definition to what constitutes this.
- the policy detailed options to be considered as alternatives to dismissal including warnings, lawful direction including undertaking rehabilitation program under the EAP.
- there were other employees who have tested positive and have not been dismissed.
- the employee consumed alcohol on a rostered day off and therefore the consumption was not a deliberate act prior to working a shift
- the employer offered the employee a further 12 hour shift after testing positive – and the employee worked it.
- the employee had eight year’s service
- the summary termination was disproportionate to the employee’s conduct.
For assistance with your workplace policies and procedures, please contact us at firstname.lastname@example.org or 1300 720 004.