Employer conducts test of long-time employee as he reported for work
Under the Fair Work Act, employers in Australia are required to guarantee that the workplace is a safe and healthy environment for all employees and that employees are physically and mentally competent to do their tasks effectively and efficiently.
Testing positive for alcohol at work can be considered misconduct which would result in dismissal. Caselaw has laid down that such conduct would be a breach of trust.
Additionally, the Fair Work Commission (FWC) has said that alcohol-induced behaviour may endanger the health and safety of other employees and might affect productivity and morale.
In this case, however, an employee who tested positive for alcohol was reinstated.
Background of the case
The employee worked with the employer for 39 years and was employed as a track worker at the Queensland Rail Roma Depot at the time of dismissal. He was classified as a rail safety worker.
His employment was terminated around June 2022 because a few months before, he tested positive for alcohol during a random test, reading 0.037 BAC at 6:57 AM and 0.025 BAC at 7:15 AM.
For reference, “blood alcohol content” or BAC has the following indicators: 0.0 percent BAC (sober) and .08 percent BAC (legally intoxicated).
The employer conducted the test at the employee’s depot as he reported for work. The former argued that the latter breached the requirement in its alcohol and other drugs policy that all workers must be under the prescribed limit for alcohol of zero BAC when: signed on for work, in the workplace, rostered on duty, on call, or when formally representing Queensland Rail at any event or workplace.
The employee argued that presenting to work with a BAC of 0.025 was not a valid reason for termination and pleaded that dismissal was “severely disproportionate to the gravity of the alleged misconduct and harsh.”
Meanwhile, the employer submitted that it had a valid reason for dismissal because it gave its employees a lawful and reasonable direction through its alcohol policy. It said that it had obligations “to uphold safety standards in the workplace and comply with its obligations at law,” and considered the employee’s conduct a “serious breach” since he performed “critical safety work which could have life-threatening consequences if undertaken incorrectly.”
HRD previously reported on a dismissal case involving out-of-work misconduct, where the worker was at a bar and made threats under the influence of alcohol. In another case, a CEO fired a senior employee who let his team drink alcohol at company lunch.
‘He never failed a test before’
The FWC accepted that the employer’s alcohol standard was lawful and reasonable considering the nature of the rail industry, including the types of hazards and the potentially extreme consequences of accidents, the regulatory impost on the employer, and the employee’s role.
It noted that testing positive for alcohol at work was a breach of the employer’s policy and “was of sufficient gravity to constitute a valid reason for dismissal.” It also found the dismissal to be procedurally fair.
And yet, the FWC explored other factors for its consideration. It looked into the employee’s age, limited literacy and formal qualifications, reliance on housing supplied by the employer, financial circumstances, prospects of finding employment, previously unblemished work record, and “honest belief” he had a zero BAC reading when he reported for work.
According to records, the employee was employed by the railways at 20 years old (and served for almost 40 years). Before that, he completed his formal education only until grade three and worked in agriculture and industries.
The FWC also noted that on the morning of his alcohol test, “he had followed his usual drinking pattern, which had not previously resulted in a positive reading.”
It also noted that under national railway standards, termination was not the only disciplinary option available, and the policy allowed exceptions.
The commission further noted that the employee is a person who “follows a strict routine, never failed a test before, showed remorse and contrition, and the BAC reading was relatively low.”
Thus, the FWC concluded that dismissal was “too harsh and disproportionate to the gravity of the misconduct.” It then ordered the employee to be reinstated.
