FWC rejects unfair dismissal claim from employee sacked for intoxication

FWC rejects unfair dismissal claim from employee sacked for intoxication

FWC rejects unfair dismissal claim from employee sacked for intoxication

The Fair Work Commission has rejected an unfair dismissal claim from an employee suspected by management of being at work affected by alcohol and, when requested, refused to undertake a drug and alcohol test.

The male employee ‘RH’ commenced employment with Wentworth Financial Services Pty Ltd as a financial advisor on 11 October 2021, employed on a full-time permanent basis. On 4 August 2022, he was summarily dismissed on the basis that he engaged in serious misconduct by presenting to work intoxicated on 1 July 2022.

The employer believed that the advisor was allegedly drunk and disorderly, appearing hungover and intoxicated, lacking coordination, had bloodshot glassy looking eyes, had a slow pupil response, was unable to complete his work on that day, and was slurring his speech.

After smelling alcohol on his breath, two of the company’s directors requested he take an independent drug and alcohol test. In evidence before Deputy President Nicholas Lake, one of the directors stated that they repeated the direction three times and, after his final refusal, considered the direction to be both lawful and reasonable.

He was told to return home and present to work on the following Monday, 4 July 2022, at 10:00 am.

At the meeting, the advisor denied the allegations of being intoxicated and claimed the reason for the smell of alcohol was from “a big night on the booze the night before”. He denied being drunk and stated that he drove home every day, including the day of his dismissal. Nevertheless, he was terminated.

The employer’s reasons for summarily dismissing him was on the basis that he had engaged in serious misconduct, which was a health and safety risk, inconsistent with the contract of employment, and caused a serious and imminent risk to the reputation, viability or profitability of the employer’s business. He was unfit to be entrusted with duties and failed to undertake an alcohol breath test when requested.

In determining the dismissal was lawful, Deputy President Lake highlighted, “the employee being intoxicated at work” is specifically included as an example of serious misconduct under the Fair Work Regulations 2009. The Deputy President noted that the request for drug and alcohol testing was consistent with the contract of employment and the company’s policy towards alcohol.

He also noted,

“On balance, I am satisfied that the Applicant was intoxicated as there was an acknowledgement from the Applicant that he had at least one or two drinks at lunch and/or he had intoxicated himself last night in which the effects were so significant that the Respondent had raised this as a concern when he attended work on 1 July 2022”.

Further, he noted,

“The Applicant was in a position of providing financial advice which would be an input to the provision of financial advice to various clients while intoxicated. Further, he may have had direct contact with clients when undertaking his duties”.

Deputy President Lake dismissed the application.

RCJH v Wentworth Financial Services Pty Ltd (Mills+Brown) (U2022/7179)

For queries about alcohol policies, allegations of misconduct, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW 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.

Ref: 328.0523

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