Overview
In safety critical work environments, employers are usually confident that they can rightly rely on “zero tolerance” drug and alcohol policies being strictly enforced by the Courts and Commissions.
The caveat to this is that any such policy must be clearly set out, communicated to and understood by staff, and consistently applied across the business. If this does not happen, the intent of the policy, and action based on breaches, can be seriously undermined.
One prosecco too many?
The point was recently demonstrated in the Fair Work Commission where Virgin Australia was ordered to reinstate a flight attendant who was dismissed after having consumed a single glass of prosecco about 7.5 hours before a flight. There was no evidence that the worker had a BAC above of 0.00, nor that he was affected by alcohol when he attended for work.
Virgin Australia’s drug and alcohol management policy was said to prohibit the consumption of any alcohol within the 8 hours before attending for duty.
Could Virgin Australia rely on its policy?
In this case, Virgin Australia’s drug and alcohol management policy was contained in various documents, and summarised in others.
In some of these documents, it was clear that the requirement was that workers must have a blood alcohol concentration of 0.00 and not have consumed alcohol within 8 hours of commencing duties. Unsurprisingly, Virgin relied strongly on this document.
However, and critically, there was evidence that:
- in other policy documents the “8 hours rule” was stated to be a ‘guideline’, and
- in practice, the “8 hours rule” was commonly understood to be a guideline; and
- in fact, another worker had recently attended for duty with a 0.02 BAC, and was not terminated.
These factors were key in the Commission’s decision.
The Commission found that the employee was justified in considering that the “8 hours rule” was in fact a guideline, and found that no valid reason for dismissal existed. That being the case, the Commission ordered that the employee be reinstated.
What can employers learn?
We think the key takeaways are to:
- review and ensure that any drug and alcohol management policies are clear and consistent;
- carry out periodic and ‘plain English’ training in the policy and its requirements. The Commission has made it clear that if employers want to rely on drug and alcohol management policies, then staff are entitled to know what is being required of them, and the consequences of non-compliance;
- rely on the policies in a consistent manner. If they are said to be “zero tolerance”, then this should be how they are treated. If there is room for leniency, then say so and reserve that discretion for cases to be examined on their own merits.
Queries
If you have any queries, please contact Joe or Emily.
| Joe Mullavey Principal M: 0416 794 061 E: jmullavey@pageseager.com.au |
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| Emily Creak Principal M: 0400 955 183 E: ecreak@pageseager.com.au |
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Published: 28 August 2024
