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.

Key Employment Dates for 2011

On 1 January 2011, a number of key changes, and entitlements, came into effect under the Fair Work Act 2009 (Act) which may impact on employers. The more significant of these are:

•  Unfair dismissals: As of 1 January 2011, a Small Business Employer is an employer with 15 employees or less on headcount (including full-time, part-time, regular and systematic casual employees, and employees in associated entities). It’s no longer calculated based on 15 full-time equivalent employees. Employees of Small Business Employers must serve a minimum period of employment of 12 months before they can commence unfair dismissal proceedings. For larger employers, this period is 6 months.
   
• Redundancy: From 1 January 2011, the redundancy scale in the National Employment Standards (NES) will impact upon employers. The NES provide any employee with 12 months continuous service with an entitlement to 4 weeks’ redundancy pay and this entitlement increases with the length of service. The entitlement to a redundancy payment is in addition to notice of termination. Previously employees who weren’t covered by an award or enterprise agreement weren’t entitled to a redundancy payment. Importantly, the redundancy entitlement in the NES doesn’t exclude any greater entitlement an employee may have under an award, enterprise agreement, contract of employment or redundancy policy. 
   
• Any employers that were State system employers covered by State awards prior to 1 January 2010, will be subject to the Federal Modern Awards from 1 February 2011 and will need to pay employees in accordance with these awards from this date. It is possible to phase in any increase or decrease in the pay rates, loadings and penalties until 1 July 2014. Employers need to determine the appropriate awards for their employees.

KEY POINTS: Employers should determine whether they’re a Small Business Employer. When terminating an employee for redundancy reasons, all employees are now entitled to a redundancy payment. However, generally, employees of Small Business Employers aren’t entitled to a redundancy payment but exceptions may apply due to transitional provisions in awards.

2010 Sunshine Coast Business Woman of the Year awards

17 AUGUST 2010

Managing Partner of Aitken Legal, Lisa Aitken, was named Corporate Business Woman of the Year at the 2010 Sunshine Coast Business Woman of the Year awards.

Read more in the Sunshine Coast Daily

New laws hit Coast firms

2 FEBRUARY 2010

Aitken Legal partner Chris Campbell comments on new national workplace laws.

Read more in the Sunshine Coast Daily