Drinking Alcohol On-site Warrants Termination

The unfair dismissal application of a leading-hand construction worker has been rejected on the basis that he had been legitimately terminated for drinking alcohol on-site in breach of the company's zero tolerance policy.

The leading hand employee 'PE' had begun working for CanDo Building Services Pty Ltd (the employer) on 16 April 2021, until his summary dismissal on 22 November 2021. The reasons provided to him for his dismissal were that he had previously forcefully entered a property via a window and was observed drinking alcohol on site on 19 November 2021.

Upon commencement, each employee of the company signs a 'Terms and Conditions of Employment' document, which contains a brief 'Drug, Alcohol & Smoking Policy' comprising two sentences. Effectively, the company mandates zero tolerance towards the use and/or possession of alcohol and drugs at all times in the workplace, vehicles or on worksites and prohibits smoking in company vehicles.

In evidence before Commissioner Chris Simpson, PE denied forcing his way into a building and claimed that he was merely looking to use a toilet inside, as no portaloo was provided on the site. Although the employer claimed to have viewed CCTV of the incident suggesting that the behaviour of the leading hand 'doesn't look very good', the parties agreed that he did not receive a warning at the time.

A further allegation involved a suggestion that the leading hand was smoking marijuana near a work truck sometime around July or August 2021. PE refuted the allegation. Again, no action was taken against the leading hand at the time.

The critical incident involved a complaint from a property owner to a CanDo manager, DC, on 19 November 2021. The owner wrote to the employer stating, "Specifically, I would like to notify you of the events that transpired during the erection of the scaffold. It was noticed by myself, my wife and various tradespeople also on-site that alcohol was being consumed. This consumption of alcohol was condoned and encouraged by who (sic) appeared to be in a supervisory role (referring to PE). This led to some very rowdy behaviour, inappropriate for family environments, including the use of profanities in front of children and neighbours".

Upon returning to the main office, PE informed DC that another leading hand was drinking on-site and involved in the rowdy behaviour. He denied that he had consumed alcohol and that he definitely didn't condone the behaviour that had occurred.

On the following Monday, DC spoke to PE regarding the disappearance of several batteries from the site. During the conversation, DC recalled that PE had admitted to drinking alcohol on-site. Consequently, he was summarily dismissed later that day.

In assessing the witness evidence provided, Commissioner Simpson noted,

"I am more inclined to prefer the evidence of DC because I found him to be direct and clear in his evidence…I find it unlikely that DC would invent the claim that (PE) had admitted to drinking on site or that (PE) admitted to it during the meeting. I find the version of events as provided by (PE) to be less likely".

Ultimately the Commissioner noted,

"Given I have concluded it is more likely than not that (PE) admitted to drinking on-site in the course of the meeting on Monday 22 November, in circumstances where the evidence is clear that the Respondent had a clear and unambiguous policy of zero tolerance of such behaviour on safety grounds, I am satisfied that the Respondent had a valid reason for dismissal"."Given I have concluded it is more likely than not that (PE) admitted to drinking on-site in the course of the meeting on Monday 22 November, in circumstances where the evidence is clear that the Respondent had a clear and unambiguous policy of zero tolerance of such behaviour on safety grounds, I am satisfied that the Respondent had a valid reason for dismissal".

The application was dismissed.

Mr PE v Cando Building Services Pty Ltd Atf The Ath Family Trust T/A Cando Building - [2022] FWC 1493

For queries about drug and alcohol policies, misconduct, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 925 529 or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.