D&A sacking upheld despite "infelicitously drafted" policy
Article by HR Daily (22 January 2025)
A potential inconsistency in an employer's drug and alcohol policy did not undermine its dismissal of a worker who had breached it three times, a full bench of the Fair Work Commission has ruled.
The Patrick Stevedores Holdings employee returned on-site non-negative tests for amphetamine and methamphetamine twice in October 2022, and the results were confirmed in subsequent lab testing.
He received a first and a final written warning for breaching the employer's 'Fitness for Work (Drug and Alcohol) Procedure', both of which advised him that any further D&A breaches or any other unacceptable conduct might result in disciplinary action, including dismissal.
The warnings also said the employee would be subject to drug testing over the next 12 months to monitor his ongoing compliance.
In October 2023 the employee returned a negative on-site test, but lab testing of the sample later returned a positive result for amphetamine and methamphetamine.
He conceded that he had taken "a pill" that morning and didn't know what it contained or how long it would last, before presenting for his shift at 11pm.
After a show-cause process, the employer summarily dismissed him for his "repeated and serious" conduct.
Policy set out "options", not steps
In unfair dismissal proceedings in June last year, Commissioner Tanya Cirkovic found the employee's conduct justified the show-cause process and his subsequent dismissal, given that: the employer operated "in a hazardous environment"; it had communicated the contents of the D&A procedure; and despite being aware of the procedure, the employee "attended work with levels of amphetamine and methamphetamine in his system above the pre-determined allowable limit on three occasions".
The employee lodged an appeal, arguing the D&A procedure required the employer to issue him a third written warning before it could initiate a show-cause process.
The full bench – Vice President Mark Gibian and Deputy Presidents Amber Millhouse and Peter Hampton – granted permission for the appeal, on the basis that it raised issues of general application concerning an employer's compliance with its own policies and procedures in the context of repeated drug and alcohol breaches.
It noted that clause 4.6.3 of the procedure is titled "Third Breach" and states: "A Third Written Warning shall be issued using Form – Warning Letter (AOD Breach)."
The clause proceeds by stating: "A show-cause meeting shall be held between the employee and management."
On one view, the bench said, the D&A procedure appeared to mandate both a third written warning and a show-cause meeting in response to a third breach.
But this would "represent potentially inconsistent outcomes", it said, given that a written warning assumes the employment relationship will continue, whereas a show-cause process might result in dismissal.
The bench found that the "infelicitously drafted" clause set out the "limited courses of action" available to the employer in response to a third breach, "rather than a requirement that each step be followed in every case".
"In our opinion, that is the only way the D&A procedure can sensibly be understood," the bench said, in dismissing the appeal.
It also noted that D&A policies are "of a type that will not always be drafted with precision".
Hawken v Patrick Stevedores Holdings Pty Limited [2024] FWCFB 463 (18 December 2024)
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