The Fair Work Act administered by the Fair Work Commission is a set of legislative and regulatory directives setting standards for workplace relations. An important matter it covers is unfair dismissal claims, which is one of the popular charges frequently made by workers who are dismissed from their jobs due to substance use. The law gives employers the right to terminate workers for serious misconduct, which sounds reasonable at first glance. However, employers must be able to prove serious misconduct, and that is not always as easy as it seems.
Fair Work gives examples of serious misconduct, and one of the examples is “being drunk at work (to the extent the employee can’t be trusted to do their duties)” 1 In other words, simply being intoxicated at work is not necessarily serious misconduct justifying dismissal, if the employer cannot prove that the worker is unable to safely do their job. However, Fair Work also gives an example of serious misconduct as, “refusing to carry out a lawful and reasonable instruction that is part of the job.” These two examples support the case for having a clear drug and alcohol policy that serves as a reasonable instruction to employees to maintain a substance free workplace. In addition, the employer must have well trained staff who can accurately document situations in which workers are intoxicated or using illegal substances and the specifics as to how they are unable to safely do their jobs.
Anticipating Worker Disagreement with Results
A worker guilty of serious misconduct can be terminated without notice. For example, a construction worker drives a forklift erratically. The worker is tested for alcohol with a Lion AlcoBlow and the results clearly indicate that the person’s alcohol level is over .021 (% BAC). The employer can terminate the worker, giving no notice in a summary dismissal, but must still pay any unpaid wages or unused benefits like accrued vacation time. The employer does not have to be given an opportunity to respond (though many employers do), but the worker decides to file an unfair dismissal claim, saying that he was able to operate the forklift and the test results were false. The employer that used testing equipment meeting Australian Standard AS 3547 and has a detailed incident report describing the incident and how the worker’s action specifically threatened his safety and the safety of co-workers will have a much easier time defending the dismissal than a business with no drug and alcohol testing policy or program.
Chances are most workers are not going to admit drug and alcohol testing results are correct. They will claim the equipment is faulty or the tester did not know how to correctly operate the equipment. For small businesses with 15 or less employees, the Fair Work Act allows summary dismissal based on reasonable grounds that the misconduct is serious enough to justify the termination. The problem develops when it is time to defend reasonable grounds because what is reasonable to the employer is probably not reasonable to the person losing his or her job.
It is possible to prove reasonable grounds, but the task is much easier when alcohol and drug testing is used versus documenting events that can be interpreted in more than one way. Fair Work requires a reasonable investigation but does not describe a single course of action for the obvious reason that each situation will be very different. That puts the onus on the employer to justify investigative results and defend employment decisions.
How Much Investigating is Enough?
In one case, an employer suspected a worker was using drugs. The employer witnessed erratic behaviour, was told by the worker’s former partner that drugs were used, and learned the worker was admitted to the hospital for drug use and mental illness. The worker was dismissed, appealed the dismissal, and lost. The Fair Work Australia Full Bench decision in John Pinawin t/as Rosevi.Hair.Face.Beauty v. Mr. Edwin Doringo [2012] FWAFB 1359 was that the employer had reached a reasonable conclusion based on the reasonable investigation.2
What is defined as a reasonable investigation is debatable. In the case just mentioned, the employer actually observed the worker acting erratic at his home, as well as at work. It would have been so much simpler if the employer had tested the employee and documented the results, rather than feeling the need to follow the worker to his home, risking accusations of invasion of privacy, and interviewing others. At some point, the expense of investigating uncertain cases will far outweigh the cost of alcohol testing. All companies should have a drug and alcohol testing policy that prohibits the use of substances in the workplace. When testing indicates the employee is using drugs or alcohol, the employer has satisfied the Fair Work requirement for reasonable proof and can also prove the worker has failed to adhere to policies the person agreed to at the time of employment.
The keys to successfully protecting the workplace from the negative effects of substance abuse is to, 1) have a drug and alcohol policy, 2) ensure the policy is communicated to all staff, 3) implement a random drug & alcohol testing program, 4) consistently manage the program, and 5) thoroughly document testing results and every incident. These steps contribute to the health and safety of the workplace and can save an employer thousands of dollars in legal defence expenses should a worker appeal a dismissal.
The expense associated with developing a drug and alcohol policy and managing a testing program is much less than the expense of handling an employee injury or accident that is due to drug or alcohol use. Mediscreen (mediscreen.net.au/index.php?mod=services) can structure drug and alcohol testing services to fit all employer needs at a reasonable cost.
This article has been taken from http://mediscreen.net.au/articles/?p=2232
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