A recent Fair Work Commission (FWC) decision has highlighted the importance of having, and properly applying, clear workplace drug and alcohol policies, when it comes to requesting an employee to take a breath test at work.
In Tamati v MQT Pty Ltd, an employee was dismissed after refusing to take a breath test following a team lunch where alcohol had been consumed. The FWC found the dismissal to be harsh, unjust and unreasonable primarily because the employer’s drug and alcohol policy was unclear, inconsistently applied, and failed to specify the consequences of refusal.
What happened?
Three employees attended a four-hour lunch, during which alcohol was consumed. After returning to the office, one employee behaved disruptively, following which they tendered their resignation. The employer then directed another employee who attended the lunch to take a breath test, relying on reasons of ‘fairness’ and referring to their ‘duty of care’.
That same employee had admitted to consuming one alcoholic drink but questioned the grounds for the breath test. When she refused to comply, she was suspended and later summarily dismissed on the grounds of serious misconduct.
The FWC found the termination constituted unfair dismissal because:
- The direction to take the test was not made in accordance with the employer’s own policy;
- The grounds for “reasonable suspicion” were inconsistent and unclear;
- The policy was never provided to the employee or explained; and
- The policy did not state that refusal could lead to dismissal.
Accordingly, the FWC ordered the employer to pay $63,500 in compensation.
Why it matters
Employers have a legal duty to manage health and safety risks, including those arising from drugs and alcohol. However, this case makes it clear that even where safety is a legitimate concern, employers can’t enforce testing outside the bounds of a clear and consistently applied policy.
Therefore, it’s important that employers are:
- Specific and clearly outline when and how testing may occur, what constitutes “reasonable suspicion”, and the consequences of refusal.
- Consistent and apply policies fairly, document decisions, and communicate the reasons for testing to the employee.
- Following procedural fairness principles, which include providing the employee with an opportunity to respond before deciding on disciplinary action.
- Regularly reviewing and updating policies to reflect current legislation, workplace risks, and best practice.
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