Employer wins on alcohol related dismissal

In a case highlighting the importance of effective workplace polices, FWA has upheld the decision of an employer to dismiss an employee for breaching the company’s zero tolerance policy on alcohol.

Commissioner Cloghan in Mr Shane Jeffrey Ley v Macmahon Contractors Pty Ltd, ruled in favour of the employer following evidence that the employee had breached the company’s alcohol policy twice in one year. The employee was warned after his first breach that a second breach could result in his dismissal. Adding to the employer’s case was the fact that the employee had undertaken a Site Specific Induction Assessment in 2008 in which he correctly answered questions relating to daily Blood Alcohol Concentration (BAC) testing and the requirement to ensure a zero BAC reading.

The employee explained that the day prior to him being tested and having a BAC reading, he’d been volunteering at a football charity fundraiser where he’d been drinking without having had breakfast or an evening meal. He also argued that the employer hadn’t followed BAC testing procedure having conducted six tests in total, two of which showed a zero reading.

Commissioner Cloghan stated that an honest explanation wasn’t otherwise an acceptable excuse in circumstances where the policy is clear and advance warnings have been provided. The Commissioner also stated that whilst the employer had departed from established testing procedure, it wasn’t a situation where the failure to follow strict procedures would triumph over the breach that occurred. The Commissioner accepted that six tests were performed by the nurse to ensure that the BAC test results were valid.

The employer was found to have followed due process throughout the dismissal giving no other reason for the Commissioner to make an unfair dismissal ruling.

Key Point: If an employer is going to rely on a policy to dismiss an employee, it’s important to provide evidence that the employee was well aware of, and understood, the policy prior to the conduct leading to dismissal.