Train driver wins unfair dismissal case after dodgy alcohol test

Businesses have been warned to not only maintain strict alcohol and drug testing standards, but actually make sure they’re able to conduct those tests properly, after a business has been slammed by a successful unfair dismissal case.

The applicant was found to be unfairly dismissed after he was tested for drug and alcohol intake on a day during which he was not even rostered to work, by an employee who was not authorised to conduct the test.

TressCox Lawyers partner Nick Duggal told SmartCompany this morning it’s not enough to just have a policy – it needs to be maintained.

“You need to have a clear drug and alcohol testing policy, but you need to also clearly articulate when that testing can occur,” he says.

James Martin was employed by El Zorro Transport (now in liquidation) as a locomotive driver for nearly five years. However, in March of this year he was told there wasn’t much work available, but he could attend an “expression of interest” meeting to find out about new opportunities.

Before attending the test, he was stopped by a manager to conduct a “pre-sign-on random alcohol test”.

The next day, Martin was given a letter saying he had been summarily dismissed for testing positive to an alcohol test. His two tests registered readings of 0.014% and 0.01% respectively.

The Fair Work Commission found the dismissal was unfair given the nature of the meeting – which had nothing to do with work.

“He was not undertaking rail safety work. He did not present himself at the respondent’s premises correctly attired and ready for work. He was not told to present for work on the day of his dismissal.”

Even if the test was valid, the Commission found Martin wasn’t even given notice of a new alcohol limit standard for tests of just 0%, rather than the old limit of 0.02%.

“The circumstances surrounding the applicant’s alcohol test were seriously flawed. The testing officer … was not authorised to conduct the test. The applicant’s dismissal was disproportionate to the gravity of his conduct.”

Specifically, the Commission said, the conduct was neither deliberate nor wilful – two factors for a summary dismissal.

Duggal says while it’s perfectly valid for drug and alcohol testing to occur in occupations in which employees handle dangerous equipment, the circumstances regarding this test were not good enough.

“The employee wasn’t going to be driving a train that day, there were no real health and safety considerations.

“It’s important to understand that a summary dismissal requires repudiation of the terms of the contract. Turning up to see if there was more work available and having an alcohol consistent test wasn’t found to constitute serious misconduct.”

The Commission also found workplace policies cannot be effected unless employers make arrangements to “provide them to employees in an orderly way” – and if they don’t, there can be consequences.

“All changes made to policies must be clearly and openly communicated to employees. It follows that where changes are not properly communicated to employees, key compliance provisions may be unenforceable.”