Alcohol policies: The new precedent

Who would have thought that there would be forks in the road between the enforcement of OH&S obligations and alcohol and drug testing? Well, it has happened!

There are now two streams of law relating to safety issues where the outcome is different for the affected employee.

Alcohol affected employees

In the last month, case law has made it clear that you can terminate an employee who attends work with even a trace of alcohol in their blood.

If your business has an industry standard drug and alcohol policy and procedure, has inducted, trained and made employees competent in their knowledge of the policy and procedure, and the permitted threshold level for the presence of alcohol or drugs is reasonable based on the industry standard (for instance, zero tolerance in the mining and construction industries), it will be lawful to terminate the employee.

Contrast OH&S

It is very different where an employee breaches an OH&S policy and procedure.  Recently, an employee breached the golden rule prohibiting removal of isolation switches from a pump. Admittedly, the removal of those isolation switches effectively posed little obvious risk. Nonetheless, in the business it was absolutely clear that such a breach was such a fundamental breach of a safety rule which should have led to termination of employment.

There have been numerous other cases in which the failure to stipulate that non-compliance will lead to termination of employment, or where careful consideration is given to the effect of the breach rather than to the breach itself (as in alcohol policy and procedures), became a critical matter. Further, the growth of the personalised nature of assessment prior to termination appears to not be applied with the same vigour to drug and alcohol breaches as it is in relation to OH&S breaches. Stated simply, as part of determining whether it is fair to terminate someone, recent case law has directed employers to consider the longevity of a person’s employment, the nature of their personal financial circumstances and that of their family, and what (if any) skills they have to find alternative work.

What does this mean? Sadly, like many areas of law and life, commonsense gives way to fashion. Twelve months ago, the failure to have a consensual drug and alcohol policy (either through consultation with all employees in the business or a union), and a failure to have a rehabilitative focus within that policy which is designed to direct people towards assistance with their alcohol or drug use rather than a disciplinary focus, proved to be fatal in any attempt to terminate an employee. However, these requirements appear to have disappeared. We now have strict compliance rules where alcohol presence is seen as more evil than removing isolation switches or other safety breaches where there are real risks that such behaviour, if permitted or condoned, could lead to serious injury or fatality.

What are the lessons for employers in this strange and emerging world around alcohol and drug policies and procedures? The answers are as follows:

1. Although alcohol is presently the fashion, there is no doubt that safety (a very fashionable area of professional growth) will catch up soon. Therefore, the lessons for alcohol and drug policies and procedures are lessons which must be learned in respect of safety.
2. In light of the above observation, develop very clear policies and procedures around safety compliance and induct, train and ensure employees are competent in respect of the failure to comply with safety policies and procedures.
3. Until the law moves to being more supportive of an OH&S environment, carefully take the following into consideration:

• in the investigation of the breach of safety incident, carefully analyse the risks to other people (including the employee who breached the safety rule) and determine the likelihood of injury or death arising from the breach;
• carefully analyse the personal circumstances and at least ask appropriate questions to illicit the answers; and
• let every employee know that you are cracking down on safety – therefore everyone is on notice that a more disciplinary approach will be adopted.

1. If you take the above steps, carefully consider people’s personal circumstances, and only act to terminate where people place themselves or other people’s lives in jeopardy, it is likely that any termination will be upheld by Fair Work Australia.

2. Andrew Douglas is the Principle for Macpherson + Kelley Lawyers. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He is the principal of the legal division of Douglas LPT and appears in courts, tribunals and Commissions throughout Australia.