Rail Worker Terminated for Single Alcohol Breach Wins Reinstatement

The Fair Work Commission has quashed the termination of a long-term Queensland Rail (QR) worker who recorded a single low-range alcohol reading at work, in breach of the company's prevailing drug and alcohol policy, and ordered partial repayment of his loss of earnings since termination. Despite finding that QR had a valid reason for termination, the Commissioner ruled that the decision to terminate the employee was both harsh and unfair.

The employee had been engaged by QR for a cumulative period of nearly 39 years, with a single break in his continuity of service between 1998 to 2001. At the time of his dismissal in June 2022, he was employed as a Track Worker located at Roma Depot in western Queensland.

On the morning of 24 March 2022, the rail worker walked the short distance from his company-provided accommodation to the depot, where he was subject to a random drug and alcohol test consistent with QR's 'Alcohol and other Drugs Standard' (the AOD policy).

In evidence presented before Commissioner Chris Simpson, the worker was very surprised when he recorded an initial reading of 0.037% BAC at 6:57 am and then, following the mandatory 20-minute break, recorded a second level of 0.025% BAC at 7:15 am. The mandatory acceptable level for the worker is 0.00% BAC.

The worker claimed that he had a very strict and regular practice of drinking ? a bottle of scotch every night between 3:30 pm and 7:45 pm and had passed several random breath tests at work following this pattern. Although the employee claimed the testing may have been faulty, Commissioner Simpson did not accept this in his decision-making.

Commissioner Simpson accepted submissions from QR of the need for the company to have strict health and safety requirements in place due to the nature of their work and accepted the validity of the current AOD policy. As he noted,

"The Respondent operates in an inherently high risk industry and any presence of alcohol which could increase the risk of serious injury and death is unacceptable. The AOD Policy is a reasonably practicable measure and is appropriate to manage these risks in the Respondent's safety critical working environment".

Despite ruling that there was a valid reason for termination, Commissioner Simpson ruled the decision was harsh and unfair and cited the following mitigating factors:

• The worker's age and difficulty in securing alternate employment;
• An unblemished work record of approximately 40 years;
• The financial and personal impact on him and his family;
• The genuine belief of the worker that he would have passed the alcohol, based on previous experiences.

Although the Commission often states in cases that it is not their role to 'stand in the shoes of the employer", Commissioner Simpson noted,

"the Respondent should have concluded that termination of the Applicant's employment, in all of the circumstances was too harsh. The circumstances taken together result in a conclusion that the dismissal was disproportionate to the gravity of the misconduct in the circumstances of this case".

Commissioner Simpson rejected QR's argument that reinstatement of the rail worker would be inappropriate. However, he acknowledged that due to the worker engaging in misconduct by breaching the policy, and to reinforce the policy requirements to the remaining workforce, he reduced the compensation payable to the employee for lost earnings by 50%.

Based upon the veracity of QR's submissions supporting the reasons for the decision to terminate, it is considered likely that QR may lodge an appeal against the decision.

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 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.