A woman who attended a farewell drinks function at the Sydney Opera House was fired for becoming drunk and vomiting. Upon learning of the incident the employer dismissed the employee on the grounds that she had damaged the reputation of the business. Fair Work Commission took a different view, deciding that dismissing the woman was unreasonable.
The company did not have a clear policy or guidelines for the employee, so there was no clear breach. The case hinged on what ‘appropriate behaviour standards’ are at work-place functions. There was no communication of any drug and alcohol policy between employer and employee.
In addition, the Commission was of the view that the company acted dishonestly by manufacturing evidence and creating an alcohol policy after the incident.
This debacle cost the company tens of thousands of dollars in legal fees, penalties and reputational damage.
If the company had clear and communicated alcohol and drug policies in place, they would not have been so vulnerable. Instead of two costly, and time-consuming court cases, the employer would have justification for summarily dismissing the employee.
At Legal Consolidated, an employer can create alcohol and drug policies that will leave the employer safe and secure from such cases.
In the case of Agnew v Nationwide News PR927597, four individuals were dismissed from Nationwide News for consuming alcohol during their lunch break. They had signed a ‘drugs and alcohol policy’, however, they were still reinstated.
How can the Commission find that the termination was too harsh, especially as there was a policy in place?
The commission found that the policy was not clear-cut and created ‘mixed signals’ to the employees. The policy was not of a good enough standard to enforce, and the employees were ordered to be reinstated.
If Nationwide News had created a policy with Legal Consolidated, their policy would be ‘air-tight’ and clear. Without a policy from Legal Consolidated, any employer can be vulnerable as a case such as this one.
In a similar situation, the case of Selak v Woolworths Limited  AIRCFB 81, an employer was fired for drinking alcohol during his lunch break. However, this case differs from Nationwide News, as the Court upheld the employer decision to fire the employee.
What is different in the two cases? In the case of Selak v Woolworths, the alcohol and drug policies were strictly adhered to and were clear and precise.
At Legal Consolidated, employers can rest easy knowing that our policies are clear, concise, and air-tight.
ACT was the first jurisdiction in Australia to legalise the consumption of Marijuana.
Legalisation poses a series of tricky questions for employers. Can you fire someone for doing something legal? Does employer liability for employee actions extend to when they are drug-affected? (Short answer, yes.)
Much like alcohol, you likely have no recourse if employees partake in legalised substances outside of the workplace. However, if the substance affects them in the workplace you can take action. This is a particularly complex line to walk given substances, such as cannabis, can linger in the system for over a month after use. Discretion is required to determine if employees are still affected or positive for previous use.
Thankfully, you can certainly ban the taking of legalised and illegal drugs on your premises. Just remember to politely question exactly what your employees are taking on their “smoko breaks”.
We have designed to cover both legal and illegal substances. Update your workplace policy above.
If you are drug testing employees, use non-intrusive methods. Fair Work considers urine tests to be intrusive and discriminatory. Saliva swabs and hair follicle tests appear to pass muster.
What if the employee tests positive? Could it have been a false positive? Is the employee actually affected by the substance or is it lingering in their system? Is the employee undertaking hazardous tasks, such as driving heavy vehicles?
Context and discretion are key to exercising this policy.
A further test or a reprimand may be more appropriate than the termination of the employee. In New South Wales up to four meetings are recommended before terminating an employee.
Never before have employees had so many opportunities to attack employers. Workplace Policies reinforce and clarify the standards expected of employees. They help employers manage and guide staff more effectively. Workplace Policies define what is acceptable and unacceptable in business.
Legally prepared Workplace Policies help businesses in many ways. Policies demonstrate that the organisation is operated in an efficient and businesslike manner, raise stability and ensure consistency in the decision-making and operational procedures.
Workplace Policies assist employers to defend themselves in an unfair dismissal claim, Occupation Health and Safety (OHS) prosecution and liability claims.
Policies should form part of each employee’s employment contract.
Check your current Employment Contracts.
You cannot automatically direct an employee to obey policies. Instead, incorporate them into the Employment Contract. For example, in BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97, the Court held that a memo is not enough to bind the employee to the policies. It is only possible to bind an employee to policies by express reference in the Employment Contract.
If you are unsure you can build Employment Contracts which adopt these Workplace Policies here: Contract of Employment Page.
A policy is a statement which underpins how human resource management issues are dealt with at your business. It communicates your values and expectations of employee behaviours and performance.
Workplace Policies reinforce and clarify standard operating procedures. They help you manage staff more effectively by clearly defining acceptable and unacceptable behaviour in the workplace and set out the implications of not complying with those policies.
For help building these policies Start Building, read the hints and watch the training videos. You can also telephone us.
Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
Australia wide law firm
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