Proctor : August 2017
28 PROCTOR | August 2017 Sobering lessons in workplace safety Drug and alcohol policy breaches, a one-way ticket to dismissal Following a string of unfair dismissal claims involving breaches of drug and alcohol policies, the Fair Work Commission (FWC) has affirmed that the provision of a safe working environment is the paramount concern. Bennett v Viterra Operations Pty Ltd  FWC 665 (Viterra), along with other recent decisions, reinforces that, in high-risk work environments with strong safety cultures, health and safety considerations outweigh other factors that may otherwise characterise a dismissal as harsh, unjust or unreasonable. Safety outweighs unusual circumstances Mr Bennett had been employed by Viterra (and its predecessors) in Port Lincoln, South Australia, for 19 years and had an unblemished employment record. His workplace duties as a full-time grade three operator/electrician included high-risk operations such as managing electrical systems of up to 415 volts and working on elevated platforms, trucks and boats. He also held a permit and licences to operate truck-mounted cranes. Viterra mandated that employees operated under the Glencore/Vittera Alcohol and Other Drugs Policy (the policy). Under the policy, the alcohol limit for risk-exposed workers like Mr Bennett was strictly 0.02. On 23 August 2016, Mr Bennett presented for work at 7am, having consumed three to four pint-sized1 glasses of red wine the previous night. He was selected for random alcohol breath testing and received two positive results at 7.07am and 7.25am, with readings of 0.043 and 0.040 respectively – double the level prescribed by the policy. Consequently, he was stood down without pay. Mr Bennett was surprised by the results and sought an independent assessment. During subsequent disciplinary discussions, he advised his employer that, for various reasons, he was metabolising the alcohol at a much slower rate than would be considered normal and would never have attended work had he believed there was a chance he could still be over the policy limit. Nonetheless, Viterra dismissed Mr Bennett on 29 August 2016, citing a breach of the policy and breach of trust. On 14 September 2016, Mr Bennett submitted an application pursuant to s394 of the Fair Work Act 2009 (Cth) (FW Act), seeking remedy for alleged unfair dismissal. The arguments Mr Bennett argued his dismissal was unfair because: • There was no valid reason for his dismissal and its circumstances were harsh, unjust or unreasonable. • There were irregularities in the amount of alcohol consumed and the breath test results indicated Mr Bennett’s ability to metabolise alcohol was impaired. • Viterra did not sufficiently account for his impaired metabolism, length of service and reduced employment prospects. • The policy required these extenuating circumstances be considered. • Viterra inconsistently applied disciplinary outcomes under the policy to other employees. Viterra countered, submitting the dismissal was fair because: • Breaching the policy was a valid reason for the dismissal – Mr Bennett was notified of this reason and provided with an opportunity to respond. • Viterra’s high priority of workplace safety outweighed Mr Bennett’s explanation for his conduct and length of service. • Like Mr Bennett, all other Viterra employees who had exceeded the 0.02 alcohol limit had been dismissed. Finding Commissioner Platt found Mr Bennett’s breach of the policy constituted a valid reason for dismissal. Acknowledging the inherently high risk associated with Mr Bennett’s role, the commissioner accepted Viterra’s claim that it placed a high level of importance on safety, evidenced by the company’s policies and handbook initiatives. The commissioner also accepted Viterra’s evidence that it enforced the policy consistently with other employees. The commissioner was not satisfied there was sufficient evidence to show that Mr Bennett committed a breach of trust by allegedly failing to provide a consistent account of the amount of wine he had consumed the night before. The commissioner also did not accept that Mr Bennett sought to mislead Viterra, however denied the application for remedy for unfair dismissal nonetheless. Safety reigns Viterra is one of many recent decisions involving breaches of drug and alcohol policies in high-risk workplaces. In Hafer v Ensign Australia Pty Ltd  FWC 990, Mr Hafer was dismissed from his job in a gas field after returning a positive drug test result in breach of the company’s zero tolerance policy. Mr Hafer’s unfair dismissal application failed despite some procedural deficiencies in the company’s approach to the termination. In another example, Metro Quarry Group Pty Ltd v Ingham  FWCFB 47, Mr Ingham was selected for random alcohol breath-testing and returned a positive reading of 0.013. He was dismissed on the basis that allowing him to continue working would be a breach of the company’s duty of care to him and his fellow workers. The commission agreed with the firm approach taken by the company. These cases suggest the commission is inclined to prioritise the enforcement of a prudent health and safety policy over competing considerations such as employee tenure, age, prior unblemished records, or procedural deficiencies in the employer’s dismissal process.