Sep 13

When is it appropriate to test employees for drug and alcohol use?

Australian employers have a legal obligation to provide a safe workplace. However, must all employers have a drug and alcohol policy? And what if the employer offers, or encourages employees to consume alcohol within working hours or, within the scope of their position.

Some employers provide free alcoholic drinks for all staff at work, or have Friday “happy hour.” These benefits are intended to encourage positive workplace relationships and to improve the experience of the workplace. In some industries including property, insurance, advertising and finance, alcohol consumption is often seen as an essential component of business operations. Employees take long lunches to treat clients or, to expand business networks. In the case of these employers, liability for the conduct demonstrated by employees, after consuming alcohol needs to be recognised as a risk.

For example, a 2015 unfair dismissal case that saw insurance broker , Donald Mitchell-Inness awarded $300,000 after his employment was terminated for passing out drunk in a hotel corridor and, then attending a work conference with a hangover. This case shows employers cannot terminate employment for behaviour they are seen to encourage or endorse. The NSW District Court found alcohol consumption, in a work context, was not uncommon amongst employees at Willis where Mitchell-Innes was employed. Staff were regularly expected to socialise and consume alcohol with clients and Willis routinely reimbursed alcohol expenses resulting from employee gatherings or the entertainment of clients. The court subsequently found the dismissal was harsh, given the low-level intoxication and low-level risk of harm associated and that, there was no other significant workplace behaviours that may have justified dismissal of the employee.

In relation to another case a global drilling and energy services provider dismissed an employee after he failed a random drug test. The employee tested positive for three commonly used recreational drugs. The employee claimed that he did not use drugs, the testing was unreliable and, he was denied procedural fairness in the testing and disciplinary procedure. The Fair Work Commission agreed that the employee should not have been dismissed, and that there was a lack of procedural fairness. However, the employer’s obligation to ensure a safe workplace was considered above the employee’s claim of procedural unfairness and, the employee was unsuccessful in this case. It is important to note that the nature of the workplace was critical to the decision and, that there was a significant risk to safety for that employer.

The result may have been different if the employer didn’t follow correct procedure in a working environment that posed little risk to safety such as the case was for Mitchell-Innes and Willis, and may have resulted in a more severe penalty and award.

Whatever the case, employers are faced with the challenge to balance their obligation to provide a safe workplace, with the employee’s right to privacy and procedural fairness. A workplace policy should reflect an appropriate balance.

Tips for Policy on Drug and Alcohol in the workplace

  • If employees are subject to drug or alcohol testing, the policy should explain how and when the testing may apply.
  • The consequences for a single fail on a drug and alcohol test should be clear and fair, in consideration of the employee’s privacy and rights. In the case of Donald Mitchell-Innes, the employer was liable because of the low level of risk the employee posed by being intoxicated.
  • Employees must be aware of the policy content and their obligations and, understand the consequences if they are found in breach of the policy.
  • The policy should be “refreshed” and reviewed regularly and employees should be reminded of their obligations from time to time, particularly prior to work functions or events where alcohol is offered to employees.
  • Consider other options to dismissal including offers of sick leave, or if appropriate, referring the employee to seek counselling or rehabilitation services.
  • In workplaces that offer alcohol to employees, it should be clearly stated what behaviour is likely to constitute a breach of policy if the consumption of alcohol is allowed or encouraged.

About Larisa Moreno

Larisa MorenoLarisa Moreno is an experienced HR generalist with diverse experience across a diverse range of industries including, retail, education, consumer products, not for profit, disability services and aged care, and recruitment consultancy. With over 20 years’ experience in HR management and strategy, Larisa has extensive experience in people management, coaching, employee relations, performance management, policy development, recruitment and organisational change and has worked across within diverse groups and workplace cultures.

Prior to joining WorkLogic’s Sydney office in December, Larisa worked in HR operations management roles primarily but has also demonstrated her strengths as an L&D specialist, trainer and facilitator in sales, retail and professional service organisations. Larisa brings a solid HR background to our team, combined with experience in grievance handling, workplace investigation, workplace policy and disciplinary processes.

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