An employer who relied on their zero-tolerance alcohol policy when dismissing an employee who drunkenly tried to access the workplace out-of-hours has successfully defended the dismissal before the Fair Work Commission (FWC).

In Lewer v Inco Ships T/A Inco Ships Pty Ltd [2017] FWC 6666, the FWC heard that an employee, who worked on a tanking vessel, attempted to re-enter the vessel after dinner and a few drinks so that he could sleep-off the alcohol. When he was refused entry by security guards, he became aggressive and knocked the glasses off one of the security guards. After about 40 minutes, the employee eventually left and failed to show up for work the next day.

Following an investigation into the incident, the employer dismissed the employee on the basis that he had engaged in serious misconduct and acted in breach of company policies, including that employees were not to be on-site after having consumed alcohol. It argued that the nature of the industry they worked in meant that there was no scope for a “three strikes and you’re out” approach to policy adherence.

Before the FWC, the employee argued that his conduct was not sufficiently connected to his employment because it was outside of work hours and it was irrelevant in any case because he had not actually gained access to the vessel and had therefore not breached any company policies.

The FWC rejected these submissions and upheld the dismissal.

In doing so, the FWC drew a hard line on the requirement for employees in safety critical industries, such as shipping, to adhere to company policies given the nature of the industry and the obvious risk to health and safety. Commissioner Gregory stated these policies were clearly designed to protect the safety of the employee and others and that the expectation that employees would adhere to the policies is not diminished simply because an employee is off duty.

The fact that the employee was prevented from actually breaching the policy did little to appease the employer’s loss of trust and confidence in him.

The employee argued that the termination was particularly harsh considering he had otherwise exemplary performance reviews and that he had recently become a father and the sole breadwinner for his family. However, the FWC stated that any lesser response by the employer would have had broader implications on the workplace:

[A first and final warning] suggests that while Inco Ships expects its health and safety policies to be adhered to employees will be given a second chance in circumstances where their intention is to act in breach of those policies.

Commissioner Gregory lamented that it was “unfortunate” that the employee did not go home when his shift ended as there was nothing preventing him from doing so.


Lessons for employers

The FWC has shown that the health and safety of employees is paramount when considering if a dismissal for misconduct is unfair. Misconduct that involves a blatant disregard for the health and safety of others and the workplace generally will count against an employee in such circumstances.

Employers should also consider any employee misconduct in the context of the industry they work in – the FWC has shown support for employers who take a firm approach to policy adherence in high risk work environments.


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