Alcohol and drugs (including medicines prescribed by a doctor or available from a pharmacy) can affect a person’s ability to work safely. Most businesses have a Drug & Alcohol Policy to help ensure employees safety whilst at work. An employer however abused their policy to wrongly terminate an employee.
Employer Abuses Drug Policy – In a recent dispute between [Oliver & Return to Work South Australia and Bradley Painting Pty Ltd] it has raised some questions around what is considered ‘serious misconduct’. The worker had been off work for a re-aggravated injury and was receiving weekly workers compensation payments. Throughout the 3-month period the worker had been off work the employer had made numerous attempts to contact the worker by phone.
One of the company directors delivered a letter to the worker advising him to attend a meeting about an “employment-related matter”.
The worker attended this meeting as instructed and was issued with a warning due to supposedly being seen at his home lifting above his restriction stated on his medical certificate. Following this, the directors accused the worker of being a ‘drug addict’ and ordered he part-take in a drug test. The worker became angry and refused.
The directors dismissed the worker for ‘serious and wilful’ misconduct, which resulted in the workers weekly benefits being cut off.
This dispute was flawed for a few of the following reasons:
- There was no evidence that the worker knew about the company’s drug and alcohol policy
- The policy was to broad in that management were to order workers to part-take in drug and alcohol testing beyond the scope of the policy for the type of employment the worker was engaged in
- Unspecified methods of drug testing stated in the policy
- The right to drug and alcohol testing was only applied when the employee is or will be undertaking hazardous employment duties within the time frames in which the testing could come back positive.
It was found by Deputy President Judge Leonie Farrell that the worker’s behaviour during the meeting did not justify his dismissal given the overall context of the meeting and found it unacceptable that the employer ordered the worker to attend a meeting and take a drug test while he was still on leave and unfit for work.
Deputy President Judge Farrell said the worker’s actions “were not serious and wilful misconduct” and although the workers conduct “warranted a reprimand” it did not “breach the mutuality of his employment”.
It was found that the workers conduct didn’t justify discontinuing his compensation payments and parties were instructed to produce submissions on the final orders to be made.
Source: HEALTH & SAFETY BULLETIN