Following the reinstatement of five NRL players involved in cocaine abuse allegations, legal expert Andrew Farr offers advice for employers in similar predicaments.
The club’s board reinstated the players following independent legal advice, and on Thursday Greg Bird, Dave Taylor, Beau Falloon, Kalifa Faifai Loa and Jamie Dowling participated in their first training session since the scandal broke.
The case is a timely reminder of how employers should handle one of the most difficult aspects of people management: drugs in the workplace.
According to Andrew Farr, head of the Workplace Relations and Safety practice at Lander & Rogers law firm, the first thing to consider if the employee is in workplace is whether they are safe.
Farr outlined several questions an employer needs to address upon discovering a worker’s drug use:
- Is it safe to leave them in workplace?
- Should the employee be stood aside?
- Do they require medical attention?
- Is it safe to send them home?
- Should you provide access to an employee assistance program?
“Accord procedural fairness,” he advised. “Then the first question comes: should you stand them aside? Most employers would during an investigation, and going forward, act depending on the result of the investigation.”
Farr reminded employers to check their own policy before making any decisions, as well as considering the customs and practice of the workplace.
In cases involving the organisation's senior employees, Farr pointed out that they are unlikely to be covered by unfair dismissal law.
“Top talent is unlikely to be covered by UD law, which has a $133,000 high income threshold or award or enterprise agreement coverage,” he told HC. “This means that they have no right to Unfair Dismissal claims, which will likely influence employers’ actions.”
However, Farr pointed out that without checking with the NRL, we cannot be sure whether the Titans players are covered by the NRL enterprise agreement, which would mean they have a claim of unfair dismissal regardless of how much they earn.
“It’s difficult to generalise,” he continued. “Each circumstance is so different – even the method of dismissal will vary. Some employers may want to deal with this as a medical issue, following the approach of many sporting codes.”
For other employers, Farr told HC that if the employee’s misconduct is serious , there are two key options for employers:
- Follow a performance management process, outlining the employer's clear expectations and put in place a first and perhaps final warning, and possibly instigating a testing regime
- Treat the matter as a disciplinary issue and either summarily dismiss if it is so serious or dismiss on notice
- Dismiss for a cause – what the employee has done is misconduct
- Most Employment Agreements for top talent have a ‘no cause’ clause – the employer might exercise their right under that
“While employers can make decisions about the workplace, it’s not an absolute right,” Farr said. “Decisions an employer makes are still subject to the law, and employers must bring themselves within that.”
He referred to individual state laws, anti-discrimination laws, and the broad spectrum of legislation that could affect an employers’ right to terminate.
Farr said that although having a Zero Tolerance policy may strengthen an employer's case from a legal perspective, there’s no use just having a policy.
“Employers need to advise their staff and train employees so they know obligations. There are many weighty factors in assessing whether the employee’s termination could be deemed harsh, unjust or unreasonable –having a policy in place doesn’t automatically equal a fair dismissal.”