A recent Fair Work Commission Full Bench (“FWCFB”) decision has confirmed the importance of clarity in workplace drug and alcohol policies and highlights that not all misconduct justifies dismissal.  

Facts of the case 

The case involved an employee who consumed a glass of prosecco at the employer’s Christmas party – 7.5 hours prior to him commencing duty. The employer’s Drug and Alcohol Management Policy (“DAMP”) required employees to abstain from presenting for work or performing any work with alcohol or other drugs in their system.  

However, the employer had another manual, which contained hundreds of pages, strictly prohibiting the consumption of alcohol within eight hours of starting work. The “eight-hour rule” had also been mentioned during a discussion between the employee and his team leader some months prior. 

The employee, unsure if he could commence duty because he had consumed alcohol within eight hours, sought clarification from his immediate manager. His immediate manager replied that he thought the eight-hour rule was only a guideline rather than a strict rule and suggested the employee should check the DAMP. 

The employee checked the DAMP but there was no mention of the eight-hour rule. To be certain, and prior to commencing duty, the employee utilised a hand held breathalyser to confirm that he had a zero blood alcohol reading.  

Following rumours spreading that the employee had turned up to work drunk, the employee self-reported the incident to avoid the rumour reaching senior management. Following this, the employer commenced an investigation and found that the employee had breached his obligation to abstain from alcohol within eight hours of commencing duty.  

The employer formed the view that the employee would repeatedly engage in similar conduct in the future and the employee’s employment was terminated.   

Findings 

The Fair Work Commission (“FWC”) at first instance found that:  

• it was reasonable for the employee to have believed that the eight-hour rule was only a guideline rather than a firm rule;  

• the employee had taken steps to satifsy himself that he would not be in breach of the eight-hour rule; and 

• there was no risk that the employee would engage in similar misconduct in the future. 

As such, the dismissal was unfair and the FWC ordered reinstatement.  

In coming to this decision, the FWC commented that there is not automatically a valid reason for dismissal simply because an employee is in breach of a policy.  

The employer appealed, but the Full Bench of the FWC (“FWCFB”) dismissed the appeal confirming the FWC’s findings. The FWCFB stated that: 

“It was not unreasonable that [the employee] examine the document which purports to be a consolidation of policies with respect to the management of drugs and alcohol in order to ascertain the requirements that [the employer] imposes with respect to alcohol consumption”.   

Takeaways 

In addition to underscoring the importance of clear and enforceable workplace policies, the decision also serves as a warning that: 

• employers should consider all of the circumstances surrounding misconduct to avoid a pedantic and overly narrow focus on findings of misconduct; 

• policies must be unambiguous, if a rule is absolute it must be contained in all relevant documentation and stated as such; and 

• reinstatement is the default remedy in unfair dismissal cases and the FWC can only order another remedy if the FWC is satisfied that reinstatement is inappropriate.  

You can read more articles about drug and alcohol policies in the workplace here and here.