When is drinking on the job cause for dismissal?

In what circumstances can employers take action to terminate an employee for drinking at work? Joe Murphy explains

09 Oct 2019

Whether an employer can dismiss an employee for drinking on the job will depend very much on a range of factors, which include the employer’s policies, the workplace culture and the industry in which the employer operates.

Before you consider terminating an employee’s employment for drinking on the job, there is a fundamental requirement for the business to have a policy that clearly sets out the behaviours that are expected around alcohol. In this case, you should include a specific policy that employees must not drink while ‘on the job’, among other rules and requirements.

Of course, any policy dealing with alcohol and other drugs should go well beyond simply drinking on the job. If the working environment is a safety-critical one, then the policy should address the risks around employees who drink or use other drugs before work and in the period before commencing work, including the night before and a longer period for particular drugs. The policy should also properly address any requirements the employer has around testing for alcohol and other drugs, having regard to testing frequencies (eg scheduled, random, targeted), and consider any requirements under the relevant Australian Standards.

While the rules might state that ‘you cannot drink at work’, the central issue is not so much whether the employee is actually consuming alcohol at the workplace but rather what effect the alcohol may or will have on that person in terms of their ability to function both physically and mentally in a safe manner while on the job.

It is also important to ensure that any policy has been communicated to the employee at some point. It is unlikely to be satisfactory to simply host the policy on the intranet and direct employees to it.

How should you handle a line manager who has a drug problem?

Apart from the usual risks to health and safety that arise with drug use by employees, it is important that managers, as leaders of the business, set an example for other employees.

Ideally, you will have a policy in place to help guide you in managing a situation involving a line manager with a drug problem. Firstly, however, the process is likely to involve a process of ensuring that any evidence of drug use is secured and provable. Secondly, a decision will need to be made about whether the manager can immediately continue in their role safely, with alternative duties or suspension from duties a consideration if the answer is no. Thirdly, assuming the manager is agreeable to an approach that is focused on abstinence and rehabilitation, then obtaining a firm undertaking from the manager as to his or her behaviour moving forward is vital. Fourthly, ongoing monitoring and proportionate action is required to ensure any undertaking is being met by the manager. If the manager fails to stick to the agreed behaviours, then termination of employment might be a consideration.

Can you refuse to hire somebody who has a history of drug/alcohol problems?

If you are aware that someone has a history of problems with alcohol and you decide not to hire them on the basis of that history, then you could be discriminating against them on the basis of disability. Drug addiction can be considered a disability depending on the circumstances and motivation behind the decision not to hire the person.

The question will be whether the person can perform the inherent requirements of the job safely.

How can employers keep their employees safe at functions involving alcohol, ie Christmas parties?

The rules about keeping employees safe at Christmas parties are pretty simple:

Have a policy and communicate the policy to employees so they are aware of the policy.
Ensure arrangements are in place for the responsible service of alcohol.
Communicate clearly with employees in advance of the party as to their expected behaviours at the party and in relation to other employees and members of the public.
Make sure employees understand the ramifications of any breaches of policy or expectations, and ensure any breaches of policy are dealt with swiftly and appropriately to send the right message.

Joe Murphy is the managing director of National Workplace at Australian Business Lawyers & Advisors (ABLA). ABLA is trusted by the Australian Chamber of Commerce and Industry and is the leading voice for business in the Fair Work Commission. ABLA was voted #1 Employment & Workplace Law Firm of the Year 2019. Contact Joe on 1300 565 846 or at [email protected] if you have any questions raised by this article.