Drug & alcohol policies - a case summary

Drug & alcohol policies are contentious. The implementation of a drug & alcohol policy can raise difficult issues and usually involves balancing various rights and interests, including safety and health in the working environment, fair and reasonable treatment in employment, discipline, privacy, protection of personal freedoms as well as consideration of business and economic matters.

While drug & alcohol policies are to be encouraged, employers need to carefully consider the rationale and implementation of such policies within its workplace. Below we review some recent industrial disputes and unfair dismissal cases that shed light on what is expected with drug & alcohol policies. (For further information on drugs and alcohol and the safety implications for employers refer to Bartier Perry OHS Bulletin March 2004).

Drug & alcohol misuse ... serious misconduct?

The Workplace Relations Regulations defines "serious misconduct" to include an employee being intoxicated at work: see regulation 30CA(2)(b). However relying on that provision is not enough to defend an unfair dismissal claim. A lot depends on the seriousness of the incident and the relationship of the drug and alcohol misuse to employment.

Take for example a recent case before the Federal Commission. The employer summarily dismissed four employees who breached the company policy forbidding any employee attending work under the influence of drugs or alcohol after they returned from their regular lunch at the pub.

The company policy was considered to be "quite reasonable" particularly where the employees operated heavy equipment. Further, the employer had communicated the policy to its workers. However the dismissal of the employees for having a lunchtime schooner was "harsh" given their length of service (101 years between them), good employment record and, perhaps most importantly, the past inconsistent application of policy: (Agrew & Ors v Nationwide News Ltd, 10 February 2003, ARC).

Careful implementation of policy

Drug & alcohol policies need to be carefully implemented or there is a risk of dispute or the policy becoming ineffective. Some of the key elements to a successful drug & alcohol policy include:

• genuine consultation with staff,

• education of staff,

• preparation of a clear policy,

• telling staff the consequences of breach of policy,

• consistent application of policy, and

• continued monitoring of the policy.

A recent industrial dispute highlights the importance of a clear and well-implemented policy. A ship crew went on strike because the company under its policy sought to randomly test employees on their return from leave. The dispute was said to cost the employer close to $500,000 per day (Trident Shipping Services Pty Ltd v MUA, 18 February 2004, AIRC). Rigid and unthinking application of policy can lead to disputes.

The concerns in that dispute built on an earlier decision of the AIRC where the dismissal of an employee for testing positive to cannabis was found to be unfair. The employee had used marijuana during the holidays. While the test was positive it did not indicate any impairment. Further, the policy only prohibited the possession or consumption of drugs and alcohol on company premises (Worden v Diamond Offshore General Company, 18 October 1999, AIRC).

Such cases highlight the tension between a policy that prohibits use and a policy simply focussed on the prevention of impairment at the workplace. The former is seen as a restriction on private behaviour, while the latter is easier to justify.

A very useful guide is the recent decision of the full bench of the NSW Industrial Relations Commission in AWU v BHP Steel (AIS) Pty Ltd [2003] NSWIRComm 461. In that case the Commission was asked to review a drug & alcohol policy that built on an existing policy at the workplace. The Commission commented on the following issues:

• Whether the policy should apply to contractors and employees: Because of the obligations under the Occupational Health & Safety Act 2000 the Commission recommended it apply to all persons at the workplace. Any policy should apply to all. managers, shop floor employees and contractors included;
• When it is appropriate for the employer to require alcohol and drug testing: The proposed policy sought to allow testing on the occurrence of a "significant incident". Companies need to develop the rationale for testing, whether it be random or "for reason"; and
• What should be the minimum level of alcohol and drugs permitted: Issues as to what should be the minimum reading allowed for cannabis were considered, given the detection of cannabis did not necessarily mean impairment.

The case also considered whether, the testing regime provided sufficient protection against false positive results, the disciplinary regime was appropriate, how to handle employees who refused to take a test and managing employees on prescription medicine.

Some lessons from unfair dismissal cases

Drug & alcohol policies do not of themselves provide the basis to dismiss an employee in breach of policy. Procedural fairness still needs to be afforded if an employer is to comply with its industrial obligations.

There are decisions where the dismissal of an employee for refusing to take a drug & alcohol test has been deemed unfair, particularly where the employee was not asked a reason for the refusal or warned of the consequences of failing to do so: Larkin v Boral Constructions Material Group, 20 March 2003, WAIRC).

The inconsistent application of policy can have unwanted consequences. The AIRC ruled the dismissal of a salesman for smoking marijuana at work unfair because two other employees also caught smoking marijuana were only warned (Candido v Hi Fi Supermarkets Pty Ltd, 4 August 2003).

There are cases that illustrate the effectiveness of a policy when it is properly implemented. Qantas dismissed a supervisor for using its internal email to purchase prohibited drugs from another employee. As Qantas had educated its staff on its policy and regularly reminded staff of the policy, the dismissal was valid (Harvey v Qantas Airways Ltd, 9 July 2003, AIRC).

Conclusion

The path to implementing and maintaining a drug & alcohol policy is never easy. Cases illustrate best practice but each lesson needs to be considered in individual workplaces. Dismissal is not automatic and proper procedures need to be followed. But the occupational health and safety and performance consequences of not having a policy require that work be undertaken to develop and implement an effective policy.