Alcohol and “serious misconduct” in fair work cases

These are the legal principles which deal with the issue of the legal implications of being affected by alcohol at work and serious misconduct under the Fair Work Act Regulations.



[14] Section 387 of the Act provides that, in considering whether it is satisfied that a

dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or

conduct (including its effect on the safety and welfare of other employees); and

[2023] FWC 737


(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the

capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support

person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the

person had been warned about that unsatisfactory performance before the dismissal;


(f) the degree to which the size of the employer’s enterprise would be likely to impact

on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management

specialists or expertise in the enterprise would be likely to impact on the procedures

followed in the effecting the dismissal; and

(h) any other matters the FWC considers relevant.

[15] I am required to consider each of these criteria, to the extent they are relevant to the

factual circumstances before me.1

(a) whether there was a valid reason for the dismissal

[16] To be a valid reason, the reason for the dismissal should be “sound, defensible or well



and should not be “capricious, fanciful, spiteful or prejudiced.”

3 Where a dismissal

relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred

and justified termination.

[17] In cases relating to alleged misconduct, the Commission must make a finding, on the

evidence provided, whether, on the balance of probabilities, the employee engaged in the

impugned conduct.4 Although the employer bears the evidentiary onus of proof, it need only

satisfy the Commission that it is ‘more probable than not’ that the relevant conduct occurred.5

The Commission is required to assess whether there was ‘a’ valid reason for dismissal, based

on the evidence led at any hearing. It does this by reference to any valid reason(s) sought to be

relied upon by the employer.


[18] The Respondent submits that they had a valid reason for summarily dismissing the

Applicant on 4 July 2022 because he was intoxicated at work on 1 July 2022. In order for the

Respondent to summarily dismiss an Applicant, they must establish that there was serious


[19] Serious misconduct takes into account intoxication at work per regulation 1.07 of the

Fair Work Regulations 2009 (Cth).

[2023] FWC 737



Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious

misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the


(a) wilful or deliberate behaviour by an employee that is inconsistent

with the continuation of the contract of employment;


(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the

employer’s business.

(3)For subregulation (1), conduct that is serious misconduct includes each of the


(a) the employee, in the course of the employee’s employment,

engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault; or

(iv) sexual harassment;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction

that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the

circumstances, the conduct engaged in by the employee was not conduct that made

employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the

employee’s faculties are, by reason of the employee being under the influence of

intoxicating liquor or a drug (except a drug administered by, or taken in accordance

with the directions of, a person lawfully authorised to administer the drug), so impaired

that the employee is unfit to be entrusted with the employee’s duties or with any duty

that the employee may be called upon to perform.

[20] The Respondent’s note in their submission that the request for alcohol and drug testing

“consistent with [the Applicant’s] contract of employment and [the Respondent’s] company

policy toward alcohol”.7

[2023] FWC 737


[21] I am satisfied that the Respondent had a valid reason for the dismissal. There is

contending evidence on whether the Applicant was intoxicated or not. On balance, I am satisfied

that the Applicant was intoxicated as there was an acknowledgement from the Applicant that

he had a least one or two drinks at lunch and/or he had intoxicated himself last night in which

the effects were so significant that the Respondents had raised this as a concern when he

attended work on 1 July 2022.

[22] The Applicant was in a position of providing financial analysis which would be an input

to the provision of financial advice to various clients whilst intoxicated. Further he may have

had direct contact with clients when undertaking his duties.

[23] The Respondent had intervened in the situation by requesting the Applicant take a drug

and alcohol test. When the Applicant failed to undertake this request, the Respondent sent the

Applicant home. The Applicant may have caused serious and imminent risk to the reputation

of the Respondent’s business in terms of profitability and reputation had poor advice been

given, given that he was impaired to the point that the employer did not feel that they could be

entrusted with his duties.

[24] On the balance of probabilities, I find that the Respondent had a valid reason for



H v WFS [2023] FWC 737 delievered 21 April 2023 per Lake DP