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"Sensible" dismissal process a lesson for all employers

An organisation's "sensible" dismissal of a long-serving employee who breached its drug and alcohol policy serves as a lesson for all employers, according to a workplace lawyer.

In August 2016, the Viterra Operations Pty Ltd electrician underwent a random alcohol breath test at the start of his shift, returning a reading of 0.043. The employer's alcohol and other drugs policy limited its blood alcohol tolerance to 0.02, and it stood the employee down with pay pending an investigation.

During meetings with the employer, the employee produced test results from his own doctor, which showed a 0.03 reading, as well as evidence that his metabolic rate was lower than the statistical average, potentially due to medications he was taking.

The employer subsequently dismissed him for breaching its policy, and the employee claimed unfair dismissal, arguing the low amount of alcohol he consumed (3–4 glasses of red wine the night before his shift) and the breath test results indicated his ability to metabolise alcohol was impaired.

He told the Fair Work Commission the employer failed to consider this, along with his 20 years' unblemished service and his reduced employment prospects, when deciding to dismiss him.

The employer, however, argued that safety outweighed the employee's length of service and his explanations for the blood test results.

It told the Commission the alcohol limit was a "firm line in the sand" – all employees who had returned a reading exceeding 0.02 had been dismissed.

Historically, 31 per cent of dismissals across the business since March 2011 involved alcohol breaches; two employees had resigned during an investigation and four employees had received warnings after empty beer bottles were found in a Viterra vehicle, it claimed.

Commissioner Chris Platt found the employer followed an appropriate process in investigating the policy breach.

He said the employer believed at an early stage that dismissal was the best course of action, but still considered the employee's submissions regarding the cause of the test results, and provided an opportunity for the employee's union to participate in discussions, before making its final decision.

The fact the employee didn't realise he was above the limit at the time he started work, nor that his metabolism rate might have been lower than the statistical average, were unsatisfactory reasons for breaching the policy, he said.

Commissioner Platt found that despite the employee's length of service and unblemished record, the dismissal wasn't unfair, as "the provision of a safe working environment is paramount".

Hasty decisions viewed more critically

Henry William Lawyers director Nick Noonan says it was "sensible" for the employer to allow the employee to present his own independent medical evidence before it made a decision.

"It appears [the employer] didn't rush the investigation. [It] stood the employee down, which I understand [it] had the power to do under the policy, pending a further investigation," he told HR Daily.

"[It] afforded him what was considered a reasonable opportunity to not only understand the allegations against him but give him an opportunity to respond."

Noonan says there can be a temptation for employers to see a drug and alcohol policy breach as "fairly cut and dry" and to therefore make a decision immediately, without giving much thought to procedural fairness.

But this is an area where many employers come unstuck, as the Commission is "often more critical of a decision that is made with haste", he says.

The most effective way employers can ensure employees' safety following a drug and alcohol policy breach, and tick all procedural fairness boxes, is to give themselves a contractual power to stand employees down – this can be included in employment contracts, policies and enterprise agreements, Noonan says.

"That way there's no challenge to the lawfulness of that direction, and it means an employer doesn't have to rush a dismissal decision."

This was first published at HR Daily on 14th March 2017 and has been reproduced here with permission.

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