Truck Driver claims Throat Lozenges and cigarettes affected Blood Alcohol Reading

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Truck Driver claims Throat Lozenges and cigarettes affected Blood Alcohol Reading

A truck driver who was terminated for recording a positive Blood Alcohol Content (BAC) reading in excess of company requirements has failed to convince the Fair Work Commission that his consumption of throat lozenges and cigarettes affected the accuracy of the reading. The driver’s further claim that his termination was unfair in comparison to other staff with several readings was also unconvincing to the Commission.

The employee had commenced work with Giacci Bros Pty Ltd (the employer) on 2 February 2015, with his role involving the carting of lithium ore from Greenbushes in the Southwest of Western Australia, to the nearby port of Bunbury.

On 17 December 2020, the employee failed to undertake a BAC test prior to the commencement of his shift, claiming that the devices were not clean. His role requires a BAC reading of zero (0.00%). Two hours into his shift, he undertook an initial test and then a subsequent test, both of which recorded positive results.

He was interviewed the following day, and due to the BAC result, combined with his previous disciplinary record, he was terminated.

The employee’s extensive disciplinary record including warnings for two previous positive BAC readings, smoking in a company car, threatening to hit a supervisor and failing to report an incident, failing to self-test prior to commencing a shift, as well as `multiple’ safety breaches.

The employee’s primary defence to his dismissal was that the BAC reading was inaccurate due to his consumption of throat lozenges, smoking cigarettes between the two tests, and the decision to terminate him being harsh in comparison to the treatment of workers previously in similar situations.

Deputy President Abbey Beaumont did not accept any of these claims.

She accepted the employer’s evidence that the employee’s behaviour did not constitute a first offence. She noted that there was insufficient evidence to support the possibility that smoking cigarettes would affect the result.

Further, the Deputy President noted that the employee’s supervisor had given him the opportunity to provide details of the effects (if any) that the lozenges may have had on his reading and that he failed to do this, nor could he even produce the packet.

As she commented in her summary,

While the conduct occurred some two years prior to the events of 17 December 2020, it shows very clearly that the Respondent had previously provided the Applicant instruction on the use of the breathalyser, and that the Applicant had been provided with a ‘second chance’ having not been dismissed for the two positive BAC tests on that occasion.

The truck driver’s application was dismissed.

M R v Giacci Bro Pty Ltd (U2021/164) 23 June 2021

For questions about the safety breaches, drug and alcohol testing, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 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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