Unfair dismissal and drug and alcohol policies

This is an extract from a recent decision of the Fair Work Commission in an unfair dismissal case which deals with the legal implications in an unfair dismissal case of an employer’s drug and alcohol policies.

“Legislation

[73] Section 387 of the Act provides that, in consideration 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

(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; and

(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 effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[74] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me. 4

[75] The Respondent relies upon the following for the termination:

  • in breach of the First Direction, being a reasonable and lawful direction, the Applicant drove the Respondent’s vehicle to the Tarong property on 8 September 2021, 27 September 2021 and 28 September 2021;
  • the Applicant was dishonest in providing information as to her whereabouts on 3, 8, 27 and 28 September by attempting to conceal that she had driven the Respondent’s vehicle to the Tarong property when questioned on 6 September 2021 and 29 September 2021;
  • in breach of the First Direction and Second Direction, which were reasonable and lawful directions, the Applicant made personal stops while on a delivery run on 1 October 2021;
  • Non-compliance with the D&A policy, the Applicant did not disclose the drug possession charges.

6.4 Any Worker who is charged with or convicted of the use, consumption, possession, manufacture, sale, purchase, transfer, distribution, or supply of any Drug must, as soon as practicable, notify their supervisor and the Depot Manager of:

(a) the fact that they have been charged or convicted; and

(b) the circumstances of the charge or conviction.

Failure to do so will constitute misconduct and may result in disciplinary action in accordance with clause 11 of this policy.

“Consideration

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

[76] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 5 and should not be “capricious, fanciful, spiteful or prejudiced.”6 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

[77] That test is to be applied in a common sense way to ensure that the employer and employee have both been treated fairly 7. The question that the Commission must address is whether there was a good or sufficient reason, and a substantiated reason, for the dismissal.8

[78] 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. 9 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.10 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.11

[79] The Applicant was charged and convicted for drug offences, which under the D&A policy, which is a reasonable one, requires the Applicant to disclose any charges or convictions. I find that she did not comply with the policy, one that she had read and signed that she had done so. The Respondent operates in the transportation industry, and it is reasonable that they require disclosure to mitigate any possible risk on the road.

[80] I find that Mrs Price directed the Applicant not to deviate or stop on the 6 and 29 September 2022. The Applicant continued, contrary to, and in defiance of the reasonable direction not once but several times. The Applicant has made no concessions or disclosures as to her reasons for the departure from the clear and unambiguous directions of her employer. Given the deceptive conduct that she undertook, the Respondent confirming her continued departures in the tracking data (which was not disputed) changed her pattern of travel and ultimately decided to remove the Applicant from all the back-up runs due to her continued refusal of a reasonable and lawful direction.

[81] The Respondent, rightly, after considering her conduct in the light of the drugs charges identified not only an unwillingness of the Applicant to follow lawful and reasonable directions but that there may be reputational damage as their truck which was clearly identifiable had been driving off the route and past customers and possibly observed by police surveillance outside the residence where illegal activities were conducted.

[82] The Applicant would like to characterise the off route as, performance infractions, however they were the subject of clear directions Mrs Price made it clear on the 6 September after examining the tracking data that the Applicant was not to stop or deviate from her route. Then again on the 29 September 2021 after reviewing the tracking data which again confirmed that she had made stops and deviated Mrs Price reiterated her directions to not stop or deviate.

[83] The allegations put by the Respondent were not related to the use of drugs at work, that was never the subject of an allegation, they did not require the Applicant to undertake a drugs test as the Respondent did not make any allegations regarding the use of drugs at work. The allegation squarely put to the Applicant, and I find occurred was that she was in breach of the Drug and Alcohol policy by not reporting any drugs charges or convictions. The Applicant maintains that she was not aware of the policy clause that required this, that is no excuse and a convenient misdirection, as the evidence shows that she signed for receiving, reading and understanding the D&A policy. The Applicant had breached a significant and serious policy requirement and had continued in contravention of a specific direction by the Respondent to not deviate nor make personal stops during work time.

[84] In my view, the breach of the policy was a valid reason for the dismissal and further I find that the continued refusal to follow the reasonable and lawful directions of Mrs Price a further valid reason. An additional concern I have is that the Applicant has lied to the court when she claims to have taken the rap for her husband and plead guilty.”

Stephens v The Trustee For Price Family Trust T/A Kingaroy Freight Express (2022) FWC 1373 delivered 31 May 2022 per Lake DP