This extract from an unfair dismissal case contains a summary of the legal principles involved when determining the implications of an employer’s drug and alcohol policies to such a case.
“[190] Full Benches of this Commission have previously considered whether the dismissal of an employee following breach of an employer’s drug and alcohol policy is unfair in Harbour City Ferries Pty Ltd v Christopher Toms,175 Owen Sharp v BCS Infrastructure Support Pty Limited176 and Hilder. The recent Full Bench decision in Sydney Trains v Reece Goodsell,177 distilled a number of principles from these decisions relevant to the present case including the following:
[115] ….cases where an employer asserts that the reason for a dismissal included that an employee was impaired at work, or there was a risk that the employee was impaired at work or that there was a risk that the employee would attend work under an impairment at a future time, will generally fall for consideration under s. 387(a) in relation to whether impairment or present or future risk of impairment, is a valid reason for dismissal. In such cases the Commission will be required to determine whether the conduct occurred or the belief that it would occur in the future, is sound, defensible, well-founded, and therefore a valid reason for dismissal.
[116] …where breach of a lawful and reasonable drug and alcohol policy is the reason for dismissal, the Commission must consider whether the breach simpliciter is of sufficient gravity to constitute a sound, defensible, well-founded, and therefore valid reason for dismissal under s. 387(a). In considering this question, circumstances raised in mitigation relating to the general context in which the breach occurred, or personal to the dismissed employee, are not to be considered for the purposes of mitigating or derogating from the analysis and conclusion in relation to s. 387(a). Personal context may include that the dismissed employee did not display visible signs of impairment, or that there was no intention on the part of the employee to breach the policy, or that the dismissed employee was dealing with personal issues at the relevant time or matters such as the age and employment record of the dismissed employee. General context may include inconsistencies in the application of the policy or its terms, or a lack of understanding at the workplace about an important aspect of the policy, or whether the employer has properly explained the implications of the policy.
[117] Contextual matters cannot derogate from the validity of a reason for dismissal based on a breach simpliciter of a lawful and reasonable policy. This involves a decision making process whereby the validity of a reason for dismissal under s. 387(a) is considered separately from mitigating factors found to be relevant under s. 387(h). All the matters in s. 387 – substantive, procedural and contextual – are then required to be considered and weighed in the overall assessment of whether a dismissal is harsh, unjust or unreasonable. Notwithstanding a finding under s. 387(a) that there was a valid reason for dismissal related to breach of a drug and alcohol policy, it may be reasonably open to the Commission to find that in all the circumstances of a particular case, the dismissal was unfair, when other matters in s. 387 are considered and weighed, including mitigating factors in s. 387(h).”
Hancock v Sydney International Container Terminals Pty Limited [2025] FWC 516 delivered 20 February 2025 per Wright DP