Setting policies and procedures for the effective management of drugs and alcohol in the workplace is important, particularly for safety critical industries.
The overarching goal of such policies and procedures is to ensure employees do not show up for work in an impaired state and place themselves, other employees or their employer’s business at risk. Most drug and alcohol policies provide employers with recourses in the event that an employee fails a drug or alcohol test, but questions can arise about the seriousness of a transgression, the surrounding circumstances and the severity with which an employer should respond.
These issues were recently examined by the Fair Work Commission (FWC) in its decision of Jurgen Rust v Farstad Shipping (India Pacific) Pty Ltd T/A Farstad  FWC 3426, where a sea captain with 16 years’ service was dismissed following a random drug and alcohol screening. In October 2016, the captain was tested twice in a 30 minute period and on each occasion his blood alcohol concentration was over the employer’s acceptable limit.
The employer considered this transgression to be serious misconduct and, after following a “show cause” process, terminated the captain’s employment.
The captain made an application to the FWC claiming that his dismissal was unfair, in large part, because his consumption of alcohol the night before the test was due to his feelings about an unresolved work incident in 2014.
In 2014, an investigation had been launched following allegations that the captain made inappropriate comments during a safety committee meeting. The captain denied making the remarks but the investigation found the allegations to be substantiated.
The captain was suspended for 10 weeks whilst the investigation was being conducted. When his suspension was lifted, he was required to work with the same crew involved in the investigation and tension within the group remained. Whilst the captain was invited to write to the general manager about his concerns that the matter remained unresolved, his correspondence went unanswered.
In the FWC proceedings, the captain gave evidence that, on the day before the alcohol test, he ran into a crew member who had been involved in the 2014 incident. As a result of that chance meeting, and the captain’s feelings that the incident remained unresolved, the captain became anxious and depressed. In the course of the afternoon and evening of that day, the captain consumed 10 full strength beers.
The captain claimed that his employer’s failure to adequately resolve the incident in 2014 and properly inform him of its decisions lead him to become anxious and drink in an effort to calm himself down.
In response, the captain’s employer claimed that it had clear policies and procedures regarding drugs, alcohol and testing, the captain knew of these policies and procedures, and was in clear breach of them. The employer argued that the captain’s conduct was a serious safety concern and its dismissal of him was warranted.
The FWC found that, while the captain’s breach of the policy was a valid reason for dismissal, the dismissal itself was harsh because:
- The captain had been employed by the employer for 16 years and had an exemplary employment record; and
- The employer had failed to adequately resolve the incident in 2014, causing the captain to remain anxious about the incident and resulting in his consumption of alcohol the evening before the alcohol screening.
Having taken such factors into account, the FWC held that the employer should have explored other disciplinary options, which were permitted under its policies. The FWC said that the employer’s decision was not binary – to terminate or not to terminate – but it had a range of options open to it that it did not consider.
Whilst not condoning the captain’s conduct, the FWC held that the captain’s dismissal was unfair.
This case contains three key lessons for employers:
- Where an investigation is conducted, wrap things up properly – Employers should know what action to take when an investigation is concluded and employees (in particular the complainant and the alleged perpetrator) should be informed of the outcome and the next steps.
- When a decision is reached that disciplinary action is warranted, consider the full range of disciplinary actions available – Even in cases considered to be serious misconduct, dismissal may not be reasonable.
- Consider the full circumstances – Before terminating an employee’s employment, consider all of their circumstances and evaluate whether the dismissal is harsh in light of those circumstances. Take in to account the person’s age, their employment record (including past incidents), the seniority of their position and the seriousness of their transgression.
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