Cigarettes and cough lollies: Employee dismissed for failing BAC tests

In a recent unfair dismissal decision, the Fair Work Commission (FWC) has supported an employer’s decision to dismiss an employee for breaching its drug and alcohol policy despite the employer failing to strictly enforce the policy.

In Rushton v Giacci Bro Pty Ltd [2021] FWC 3634, the FWC heard that the employee was employed by Giacci Bro Pty Ltd (the Employer) as a truck driver but, at the time of his dismissal, he had been performing light duties as a result of a work-related injury.

The employee’s light duties included supervising “Shipping Campaigns” at a port in Western Australia, which involved driving to the port to supervise the change over from night to day shift for a week, facilitating breath tests for drivers with a hand-held breathalyser and attending to other matters at the port. Once that was completed, the employee would drive back from the port to Picton Yard to deliver paperwork and attend to other duties.

Whilst the employee was aware that the employer’s policy required him to complete a breath test before the start of each shift, the employee’s usual practice whilst on shipping campaigns was to complete his breath test on a wall-mounted breathalyser when he returned from the port to Picton Yard – some two hours after his shift had already started.

The employee had also previously received a number of warnings and notifications for failing to complete breath tests prior to the commencement of his shift and for failing two BAC tests.

In December 2020, the employee attended for work at the port and then returned to Picton Yard in accordance with his usual practice. He undertook the breath test and returned a BAC reading of 0.013. The employee claimed that he had woken up that day with a dry throat and had consumed about ten lozenges to relieve his symptoms prior to the test and that the test result could have been reading his menthol levels rather than alcohol levels.

The Employer gave evidence that, after the first BAC test, the employee told the Logistics Supervisor that he had drunk four bourbons after work the previous night and had gone to bed early to sleep it off. According to the supervisor, the employee had mentioned that he had been taking lozenges and had some left over but was unable to produce the remaining lozenges when asked to do so. The employee denied ever saying this to the supervisor.

In accordance with the Employer’s policy, the employee took another BAC test twenty minutes later and returned a BAC reading of 0.008. The employee later claimed that he had smoked a cigarette in that intervening period and that this may have affected the result as it was not in accordance with the breathalyser manufacturer’s guidelines.

The employee was called into a disciplinary meeting with a number of managers the next day to discuss his failed BAC tests as well as his failure to comply with the Employer’s policy which required him to complete a breath test prior to the commencement of his shift.

One of the managers present at the meeting subsequently gave evidence that, during the disciplinary meeting, the employee had again admitted to drinking after work but that the test was reading the menthol from the lozenges rather than the alcohol. The employee denied ever admitting to drinking alcohol the previous night.

The employee also claimed that he did not complete the breath test prior to the commencement of his shift because he had concerns about the hygiene of the hand-held breathalyser being blown, spat on and touched by other employees.

Ultimately, the Employer dismissed the employee for continually breaching company policy and procedure and wilfully engaging in misconduct which was manifested on this particular occasion by not testing at the commencement of his shift.

The FWC was convinced that the dismissal was fair, primarily because the employee had failed to complete the breath test prior to the commencement of his shift despite being previously warned about failing BAC tests and the need to use the breathalyser prior to the commencement of his shift.

It considered that the employee knew what the Employer’s policy was and he had never told the Employer about his practice of completing the breath test when he arrived at the yard. According to the FWC, the fact that the Employer failed to identify this practice by scrutinising its BAC testing records did not mean that the Employer had acceded to the employee’s behaviour being acceptable. It was entitled to enforce compliance with cut-off levels by conducting testing in accordance with its policy.

The FWC was also not convinced that the employee had held any genuine hygiene concerns because the employee had never raised those concerns with management. Even if he had, there was sufficient evidence to show that the Employer addressed such concerns in a timely manner.

Further, it did not believe that the BAC tests were as a result of inaccurate readings of menthol or cigarette use. It preferred the Employer’s evidence that the employee had told supervisors that he had been drinking the night before, noting in particular that there were file notes to support those conversations. 

The FWC also rejected the employee’s claims that the dismissal was harsh when compared to treatment of other employees who had returned non-negative BAC test results but remained employed. The FWC preferred the Employer’s evidence that, whilst it was not common for employees to lose their jobs as a result of a non-negative BAC test, it was common for employees to be dismissed if they had been given enough chances to change but failed to do so.

The FWC considered the dismissal was proportionate noting that the employee had been given multiple chances to improve before the dismissal. The application was therefore dismissed.

Lessons for employers

When it comes to implementing policies and procedures, it is always best practice for employers to ensure that those policies and procedures are enforced consistently and that employees are made aware of the potential consequences for non-compliance.

This decision shows that disciplinary action relating to non-compliance with policies and procedures (particularly those related to safety) will be validated where employees have been made aware of their obligations and given opportunities to improve.  

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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