Failure to Prove Employee Impaired Leads to Successful Unfair Dismissal Claim

The Fair Work Commission has ruled in favour of a terminated employee after determining the employer had not proven the employee had been impaired by alcohol and, therefore, could not rely on a breach of company policy to justify the termination.

The male employee 'Mr J" commenced employment with Faulkner Farming Pty Ltd (Faulkner Farming) on 17 October 2022 as an Assistant Manager for the Watermark Aggregation property, located near Gunnedah in central New South Wales. Mr J worked and resided on the property with his family during his employment.

He had signed a copy of Faulkner Farming's Alcohol and Drug Policy, which clearly states, 'It is forbidden to start work or return to work whilst under the influence of alcohol or drugs'.

On 3 January 2024, Mr J consumed a substantial amount of alcohol at his local pub and continued drinking on the way home and when at home. He failed to attend for work at the scheduled time of 7 am the following morning and was contacted by the General Manager.

It appears he slept through his alarm and subsequently arrived at the worksite around 7:40 am.

Faulkner Farming formed the view that Mr J was under the influence of alcohol and was, therefore, impaired and in breach of the policy. A meeting was held the following day, and he was then terminated on 5 January 2024 for alleged misconduct, breaching the policy.

In evidence before Commissioner Stephen Crawford, Mr J acknowledged that he had been drinking on the night in question but could not remember how many drinks he had consumed. The Commissioner noted,

"I consider it is likely Mr J consumed around 12 to 15 standard drinks during the evening".

It was agreed that Mr J went to bed around 11 pm.

In assessing the evidence presented, Commissioner Crawford highlighted that the General Manager was not called as a witness, yet had been the person who decided that Mr J was impaired from the previous night. The Commissioner also suggested it was significant that the General Manager allowed Mr J to drive himself from the worksite to his residence after he was stood down.

In dismissing the termination, the Commissioner noted,

"It may have been possible for Faulkner Farming to lead expert evidence regarding Mr J's likely blood alcohol level at 7:40 am on 4 January 2024, based on the number of drinks he admitted consuming. There is no such evidence before me. I do not consider I can simply assume Mr J must have been impaired based on his evidence about how much alcohol he consumed the previous evening".

Mr J did not seek reinstatement due to the breakdown in his relationship with his former employer.

Commissioner Crawford determined that Faulkner Farming must pay Mr J a gross amount of $4,448.85 plus applicable superannuation.

For queries about alcohol and drug consumption., WHS policies or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 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.