Fair Work Commission overturns dismissal of long-term employee who failed breathalyser test

Fair Work Commission overturns dismissal of long-term employee who failed breathalyser test

In what can only be described as a unique decision, the Queensland Industrial Relations Commission has ordered the reinstatement of an employee who returned a positive breath test in breach of the employer’s drug and alcohol policy. In the decision, the Commission gave significant weight to the employee’s length of service and disciplinary history while being somewhat critical of the approach taken by the decision-maker in the matter.

The employee had worked for the Brisbane City Council (the Council) for 25 years and had an unblemished disciplinary record. At the time of his dismissal in April 2021, he was employed as a building and tradesperson in the ‘Road Marking, Asphalt and Aggregates’ team based at a depot on the north side of Brisbane.

The nature of the role, which regularly involved undertaking work in close proximity to traffic, meant that the employee was regarded as a ‘specified category worker’ under the Council’s drug and alcohol policy.

Consequently, the employee was required to have a blood-alcohol level of 0.00% at all times when working.

On the evening of 15 December 2020, whilst off duty, the employee was drinking alcohol at home while watching a cricket match. He estimated that he drank eight to nine cans of full-strength beer between 6 pm and 10 pm. He claimed that this was more than he typically consumed as he became excited when realising a bet he placed on the match meant he would win about $300.

The following morning, he reported for work at 7 am and was selected for a random drug and alcohol screening, consistent with the policy. He returned an initial reading of 0.026%, and in the retest twenty minutes later, a second reading of 0.016%.

He was stood down for twenty-four hours, and then following a period of leave, returned to work.

An initial meeting was held with the employee in mid to late February 2021, and following a series of meetings and show cause letters, he was advised of his termination on 29 April 2021.

In reviewing the evidence presented, Commissioner John Dwyer determined that the dismissal in the circumstances was harsh, and therefore, unfair. He did not express any concerns with the policy nor the worker’s understanding of its requirements, particularly regarding the mandatory 0.00% level.

Commissioner Dwyer’s decision was based on several factors. In his view, the significant issues were:

  • The employee’s length of service;

  • The employee’s unblemished disciplinary record; and a significant length of service;

  • The employee did not believe he would be unfit for work – “I do not consider that (the worker’s) actions in attending for work that morning could properly be described as wilful or deliberate in the sense that he knew he would produce something other than a 0.00% blood alcohol level reading”.

  • The genuine remorse and contrition shown by the employee.

Commissioner Dwyer acknowledged that the worker had shown poor judgement but believed a more appropriate penalty would have been a ‘first and final’ warning.

With regard to the Council’s decision-maker, Commissioner Dwyer raised concerns that the range of disciplinary options available to him did not appear to have been considered.

He also took exception to the following comments by the decision-maker, “I believe that Mr T had every intention of commencing to undertake his duties in breach of his statutory obligationand “Mr T’s flippant disregard to his own state of alcohol concentration after excessive drinking left me with a reasonable inference that either he has engaged in such behaviour before or may have engaged in such behaviour in the future”.

In ordering the employee’s reinstatement, Commissioner Dwyer did not order compensation, but the employee’s continuity of service from his date of dismissal was maintained.

T v Brisbane City Council [2021] QIRC 429

For questions about safety policies, breaches, penalties, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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