The employee began work for the employer in February 2015. In December 2018, the employee sustained an injury and was put on light duties. Those light duties included supervising breathalyser tests of other drivers.  

The business has a policy stating, “all employees and contractors must attend work free from the influence of any potentially performance-impairing drug or alcohol”.  

On 17 December 2020, the employee failed to have a breathalyser test prior to the commencement of his shift. When the employee eventually completed the test - some two hours later - the reading was 0.013.  A subsequent test conducted 20 minutes later produced a reading of 0.008.  

The positive result triggered an automatic notification to the supervisor who discussed the result with the employee.  There is some disagreement about what was said in that meeting. 

The employee claims he maintained the fact he denied having consumed alcohol the night before. He claims he said he had taken some lozenges but no longer had the packet. The supervisor on the other hand, recalled the employee stating that he had four bourbons, and described the last one as “a bit heavy”.   

The employee was advised he would be required to attend a disciplinary meeting the next day. 

The disciplinary meeting took place with the employee attending with a union representative.  The meeting was very short with the employee claiming he avoided the testing because he had hygiene concerns regarding the testing equipment.  The employee also reiterating he had been sucking lozenges which may have contained menthol triggering the positive result.  

Noting the employee had previously been warned for failed breathalyser readings as well as other formal and informal warnings for unacceptable behaviour including speeding and smoking in company vehicles, the employee was dismissed. 

The decision 

Having examined the evidence, the Fair Work Commission (the “Commission”) accepted the employee failed to comply with a lawful and reasonable direction to undertake a breathalyser test prior to commencing work as well as attending work when returning a positive result. 

The Commission was not convinced the employee’s explanation of the consumption of lozenges was sufficient.  At no time did the employee provide any evidence in relation to the specific lozenges consumed or the ingredients.   

The employee attempted to argue the decision was harsh given other employees had not been dismissed for returning a positive result. The business accepted, it was unusual for an employee to be dismissed for returning a single positive result, however, the decision was made having regard to the employee’s employment record which included previous warnings.   

The Commission concluded the dismissal was not harsh, unjust, or unreasonable. The claim was dismissed. 

Learnings for business 

This case highlights the importance of having fair policies in place and ensuring reasonable steps are taken to enforce and address breaches.  The case also confirms the need to follow and document appropriate disciplinary procedures which not only provide an employee with an opportunity to respond, but importantly evidence those conversations and steps taken.   

How we can help 

The Victorian Chamber Workplace Relations Consultants have a wealth of experience conducting workplace investigations and providing advice and support to business considering disciplinary outcomes.   

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including: 

• Award interpretation, classification and minimum entitlements; 
• Disciplinary processes, performance management and termination; 
• Personal illness and injury; 
• Parental leave and flexible working arrangements; 
• Redundancy; 
• Occupational Health and Safety and WorkCover. 

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222. 

[2021] FWC 3634