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Information of interest to our Clients and for the industry

Unfairly Dismissed for Drunkeness at Work?

Have you heard about the Cannon versus Poultry Harvesting case?

Here’s a bit of background. Ms Cannon was employed by Poultry Harvesting and described her work as moving a large piece of machinery with an attached conveyor belt for the purpose of loading chickens onto trays. Once the chickens were loaded onto the trays, they would be put into trucks for delivery.

So what led to Ms Cannon being terminated and the ultimate unfair dismissal case?

It was night shift on Melbourne Cup Day and consuming “three or four glasses of wine” earlier in the day, Ms Cannon fell asleep on the job. With the job itself requiring two people to manage, and Ms Cannon sleeping, 50-60 chickens were consequently killed.

The boss was called in and found Ms Cannon passed out and smelling of alcohol. So what would you do? In this case the employer terminated her immediately, arguing her conduct created a serious health and safety risk. He also argued that there was a well-known company policy, which had a ‘zero-tolerance’ approach to drugs and alcohol in the workplace.

Unfortunately for the employer, the Fair Work Commission (FWC) disagreed and found the worker was dismissed unfairly and awarded the employee 6 weeks wages as compensation (nearly $7,000). This did not include the employer’s costs and stress of running the case.

Are you shaking your head yet? Are you asking, ‘how can someone turn up to work drunk, causing big financial burdens, and walk away with compensation’? The issue in this case is less about what the employee did, rather what he did NOT do.

Here’s where the employer went wrong…

The employer’s policy documents were too general and unclear

Commissioner Wilson found no substantive evidence that workers were bound to a ‘zero tolerance’ policy. He said the employer’s documents contained ‘general knowledge’ about drug and alcohol restrictions but did not make it clear what was expected, and when.

“While the evidence supports a finding on the balance of probabilities that [the worker] was aware that consumption of alcohol at work was not permitted, or that presenting for work in an intoxicated state would not be permitted, I am not able to find that [she] had been warned or was aware that consuming alcohol to any level prior to presenting for work was not permissible”, Commissioner Wilson.

The employer failed to investigate or verify the worker had consumed alcohol

Commissioner Wilson also found the employer did not have sufficient knowledge about the worker’s condition to find she was intoxicated, and took no informed or objective assessment of her condition before sacking her. In addition, the worker had not been provided with an opportunity to respond to the allegations, or to have a support person present.

Lack of training

It was unclear whether the worker was aware of or given access to the Policy and training on it.

Inconsistent application of policy and procedure

The Commission found that the policy was aimed at correcting problematic behaviour (e.g. testing, counselling), however, this was not offered to the worker. Further, the employer contradicted its own decision by allowing Ms Cannon to continue to work her shift, despite finding her unfit for work.

Key learnings for employers from this case:

  • This area of the law does not always pass the ‘logic test’ – it’s very complicated
  • A general policy must have a procedure behind it that clearly lays out what must happen and when, it is a real risk to your business otherwise
  • Doing an internal assessment of whether someone is affected is fraught with danger – get an independent expert to ‘properly’ assess intoxication (alcohol testing)
  • Train your people on your policy and document it!

Read the full case.

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