Many employers will have a “zero tolerance” policy in their workplace, particularly in relation to breaches of alcohol and drug policies. However, it is important to keep in mind that the existence of a zero tolerance policy does not automatically warrant dismissal.
This article provides a look into a recent decision by the Fair Work Commission (FWC) in relation to the dismissal of an emplyee for breaching the company’s zero tolerance alcohol and drug policy.
Case: Trevor Purves v Queensland Rail Transit Authority T/A Queensland Rail [2022] FWC 3343
Background
- Mr Purves was employed by Queensland Rail as a track worker.
- Queensland Rail’s alcohol and drug policy required zero blood alcohol concentration (BAC). The prescribed zero limit was also legislatively required under the Rail Safety National Law.
- The night before work, Mr Purves drank his routine amount of alcohol which he had been following for years. The next morning, Mr Purves was subject to a random alcohol and other drugs test at work before commencing work, where he was tested 0.025 BAC.
- Mr Purves was dismissed for a breach of the policy.
Consideration
The FWC accepted that there was a valid reason for dismissal, considering the nature of the industry in which the employer operates and the regulatory duty imposed on the employer and Mr Purves’ employment, including that Mr Purves was a track worker who was fulfilling safety-critical tasks within the rail industry.
However, the FWC found that the dismissal was disproportionate to the gravity of the misconduct and therefore harsh, after considering the following factors:
- Difficulty for Mr Purves to gain other employment within the area of his skills and experience considering:
- Mr Purves’ age, being 63, and his limited literacy and technology skills
- The employer’s dominant position in control of rail infrastructure in Queensland which may affect Mr Purves’ ability to gain employment with another employer in rail infrastructure who may be contracting to Queensland Rail.
- Mr Purves’ 40 years’ length of service with an unblemished record
- The impact of dismissal on Mr Purves and his family
- The fact that Mr Purves followed his usual drinking routine on which he was tested numerous times the following day but never tested positive
- The alcohol limit for a person to legally drive (i.e. 0.05 BAC) in comparison with Mr Purves’ record (i.e. 0.025 BAC) the policy did not make termination the only disciplinary option in the case of breach and has room for exceptions.
Outcome
The dismissal was found unfair and Mr Purves was reinstated.
Source: Lexology
