FWC decision highlights importance of acting swiftly and fairly when enforcing workplace drug and alcohol policies
Posted on November 11, 2016
The Fair Work Commission (FWC) recently found in favour of an employee who claimed that he was unfairly dismissed, despite the fact that he was involved in three alcohol-related incidents said to be in breach of his employer’s drug and alcohol policy.
In Peters v PJ & P Eldred [2016] FWC 1375, Mr Peters was employed by Elderado as a school bus driver from March 2013 until he was dismissed on 30 October 2015. Mr Peters was dismissed due to the following three incidents:
- In May 2013, Mr Peters was seen at the pub with a beer in front of him during work hours;
- On the evening of 15 December 2013, at a Christmas Carols event, Mr Peters was observed drinking several beers despite being rostered to drive the school bus the next morning at 7.00am; and
- On 21 May 2015, Mr Peters was at a pool and darts competition and was seen drinking until midnight despite being rostered to drive the school bus the next day.
In addition to the above incidents, it was alleged that Mr Peters had not been cleaning his assigned bus properly and was using the bus for unauthorised travel. As a result, Mr Peters was informed of his dismissal on 17 October 2015.
Elderado sought to justify Mr Peters’ dismissal on the basis that he had breached the company’s drug and alcohol policy (Policy). However, the FWC found that:
- the Policy was not implemented until after the second incident;
- Elderado never sought to have Mr Peters’ blood alcohol level tested;
- Mr Peters’ family gave evidence that he only had enough money to buy four drinks on the night of the third incident.
Accordingly, Elderado was unable to prove that it had a valid reason for Mr Peters’ dismissal. Further, the fact that Mr Peters had never been warned that his conduct placed him at risk of dismissal, was never given an opportunity to improve and Elderado did not allow him to respond to the allegations against him all suggested that Mr Peters had not been afforded procedural fairness in the dismissal process.
Of particular interest to the FWC was the fact that it took Elderado five months to take action against Mr Peters. Commissioner Roe considered this delay to be “totally unreasonable” in circumstances where Mr Peters was never informed that such disciplinary action was being considered in the intervening period. It followed that Elderado was ordered to reinstate Mr Peters’ employment and pay him the amount of $3,705.60 as lost earnings.
Employers should note that the FWC took no issue with the zero tolerance approach to alcohol contained in Elderado’s policy. Rather, it was Elderado’s defective process and slow response which caused its undoing before the FWC.
Please contact a member of Lynch Meyer’s Workplace Relations team if you have a query about your workplace’s drug and alcohol policy.