Can you fire a worker for drinking alcohol before returning to work?

A worker recently challenged his employer’s decision to fire him after the latter claimed that he was intoxicated when he returned to work, adding that it was misconduct and breached its workplace policy.

The worker, Martin Sheng Lei Huo, filed an unfair dismissal claim against his employer, Madoon Estate. The worker started working for the employer on 13 November 2021 as a kitchen hand.

On 1 October 2022, the worker was scheduled to start work at 8:00 A.M. During his shift, his supervisor expressed concerns about the worker's fitness for work. Later that day, the worker was allowed to leave work early in the afternoon and was not expected to return.

Nevertheless, the worker voluntarily returned to the workplace around 9:15 P.M. on the same day despite receiving no requests from the employer.

Drug and alcohol policy

According to records, the worker drank an alcoholic beverage around 4:00 PM after returning home from his initial shift. Still, he denied being under the influence of alcohol or drugs when he decided to go back to work at 9:45 P.M.

When he came back in the evening, the employer said that he had violated its drug and alcohol policy.

Moreover, the employer said the worker's behaviour was argumentative, and he didn't immediately leave the workplace when directed to do so. Instead, the employer claimed the worker continued to engage in arguments with various staff members before finally leaving the premises.

The employer further argued that after being sent home early on 1 October 2022, he attended a music festival that was being held next to the employer's establishment, where it said he consumed some form of intoxicating substance before returning to work.

The employer argued that "as the [worker] returned to the kitchen to perform work, [even] without [its] authorisation, the drug and alcohol policy applied to the [worker] as he was on the premises."

Therefore, the employer said that it had a valid reason for terminating the [worker's] employment, as he returned to the workplace under the influence of drugs and/or alcohol.

Was there a valid reason to dismiss the worker?

The FWC said it did not accept the worker’s explanation that he only had one drink in his home before going back to the workplace. It favoured the employer’s evidence that he was at the nearby music festival where he could have consumed unknown intoxicating substances.

“[His] conduct was willful and resulted in a substantial breach of the workplace’s drug and alcohol policy. The risk caused by this breach, and the implications for the employer and others surrounding the [worker] on the night in question, was not insignificant,” it said.

“The [worker’s] conduct posed a risk to the safety and welfare of himself and others at the workplace,” it added.

“The worker, in presenting to the workplace in his condition, posed a risk of damaging his own, and the employer’s reputation and interests. Similarly, [it] eroded the employment relationship itself and damaged the [employer’s] trust and confidence in him as an employee.”

“Furthermore, in returning to the workplace, the [worker] disobeyed the earlier direction of the [employer] to leave due to a concern over his fitness for work.”

Thus, the Commission said that the employer had a valid reason for dismissal and upheld the employer’s decision.