While in certain circumstances it may be reasonable to dismiss an employee who has tested positive for drugs or alcohol, employers need to follow their own workplace policies, says Simon Clayer, Senior Associate with HopgoodGanim.
“An employer does not necessarily have an automatic right to dismiss an employee who has arrived at work drunk or affected by drugs, or even having failed a drug test,” Clayer says.
Employers could easily find themselves in legal hot water for instantly dismissing an employee who was suspected of or tested positive for drugs or alcohol, he says.
“Many factors will be considered if the validity of that termination is subsequently challenged in Court,” Clayer told HC Online.
“For example, does the employer have a drug and alcohol policy and does it specify zero tolerance?”
Employers that have a zero tolerance policy may have a stronger legal footing when sacking an employee if a court agrees that non-compliance with the policy justified termination of employment.
In a 2015 case, the Federal Court endorsed a decision of a Fair Work Commission (FWC) full bench, overturning the reinstatement of a Sydney Harbour ferry master who failed a drug test after a ferry he was driving struck a wharf pylon.
The employee admitted he had smoked marijuana the night before as pain relief for a shoulder injury, and while his drug test was positive, he was not impaired at time of the incident.
However, his employer, Harbour City Ferries Pty Limited, has zero-tolerance policy for drugs and alcohol, meaning that employees must not register a positive result in a drug test that exceeds the relevant Australian Standard.
The Federal Court upheld that the zero-tolerance drug and alcohol policy held by the ferry master’s employer was highly relevant, and the absence of the employee’s proven impairment was not.
However, Clayer says employers still need to exercise caution when dismissing an employee for breaching a ‘zero tolerance’ drug and alcohol policy.
While the Fair Work Regulations classifies being intoxicated at work as serious misconduct, which is a valid reason for termination without notice, the onus on the employer is very high.
“The standard of proof for such a dismissal is extremely high, so the employer would need solid proof of the employee’s misconduct before making a decision to terminate their employment,” Clayer says.
He says failure on the employer’s part to gather such evidence may result in the employee lodging an unfair dismissal claim.
Employers can also consider other alternatives to terminating a worker’s employment when confronted with issues of drug and alcohol usage.
“An employee’s abuse of drugs or alcohol may be symptomatic of wider personal issues which may be addressed through an appropriate employee assistance program (EAP),” Clayer says.
“For this reason, an effective workplace policy needs to be part of a broader healthy workplace solution that considers drug and alcohol use, mental health, fatigue and other impacts on fitness for work,”
“A clear and well-defined policy includes education and training for managers and workers, and identified referral options such as an EAP.”
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Firing an employee who turns up for work while drunk or on drugs might seem like the right thing to do at the time, however hasty decisions could expose employers to substantial legal risk.