Says employer didn't follow zero tolerance policy against substance use
A worker recently filed an unfair dismissal claim against his employer, saying that he was fired after he questioned its failure to suspend a co-worker amid a positive drug and alcohol test.
He argued the employer did not follow its “zero tolerance” policy against substance use, adding that it was unfair since he followed the employer’s direction when, in the past, he had previously been stood down for the same reason.
On 10 July 2023, James Michael Casey filed an application before the Fair Work Commission (FWC), alleging that his termination from his employer, Mildura & District Pest Management Pty. Ltd., was unjust, harsh, or unreasonable. On the other hand, the employer disputed these allegations and said that they adhered to the Small Business Fair Dismissal Code.
The employer operates in the pest control industry in Irymple, Victoria. At the time of Casey's termination, the employer had fewer than 15 employees, thus qualifying as a small business. The worker began his employment through a traineeship in November 2021.
According to records, on 4 July 2023, the worker entered the employer's administrative office, seeking clarification about their decision not to suspend a co-worker after a positive drug and alcohol test.
The worker voiced concerns about the employer’s treatment and fairness, requesting an explanation. The discussions were primarily directed at the employer's administrative manager.
The conversation between the parties escalated into an argument, during which the worker indicated his intention to resign, and the administrative manager requested him to leave the workplace and return with a written resignation.
Around an hour after the initial conversation, the worker went inside the administrative office again, where he engaged in a second conversation.
During these talks, the administrative manager contacted the police due to alleged concerns about the worker's behaviour and his failure to leave the workplace.
Despite the absence of a resolution or police intervention, the worker subsequently left the workplace with his resignation letter and met with the employer's owner/director. During this meeting, he formally resigned from his employment.
Following this meeting, the owner/director returned to the workplace, where the administrative manager reported about the conversations with the worker.
After deliberation, the employer decided that the worker's conduct constituted grounds for immediate dismissal.
The employer communicated this decision in writing, stating that he was effectively dismissed due to "serious misconduct."
In his submission to the FWC, the worker said:
“We had a drug test on the day I was dismissed – last year, a co-worker and I got stood down for 2-3 days for failing it for THC. This time around, a different worker failed it but was allowed to work, although our contract states there is [zero] tolerance for drugs and alcohol. I went into the office and expressed how unfair I believed it to be on behalf of myself and all my co-workers.”
The Commission found that when the worker became aware that a co-worker had failed a drug and alcohol test and had been allowed to continue working, he was “upset” and “thought it was unfair.”
The worker held the belief that the employer’s decision “was not consistent with what had previously happened to him and another co-worker who had been stood down.”
He said that “while he raised his voice in both the conversations with the [administrative manager,] he did not ‘lose his cool,’ remained calm and just attempted to seek an explanation and subsequently be heard.”
He argued that the manager was the one who “first raised her voice and lost her cool.”
“While the [worker’s] conduct on 4 July 2023 was certainly not appropriate for an employee to engage in, the evidence is that what was said and what occurred during these conversations was not entirely [his] responsibility,” the Commission said.
“The [administrative manager] also has some responsibility for what occurred during that exchange,” it added.
“In any event, [the worker’s] conduct was not sufficiently serious enough to justify a termination of employment without notice or a concern of impending violence.”
Thus, the FWC said that the employer did not have a valid reason to dismiss the worker. It also found that it did not give him reasonable notice or an opportunity to respond. It then ordered the employer to pay the proper compensation.
