Brazell v Viterra Limited. U2014/4777. [2014] FWC 9271. Steel C

  • Applicant was terminated for breach of respondent alcohol policy.
  • Applicant attended work for night shift.
  • Initial random breath test prescribed alcohol content (PAC) of 0.034% – second breath PAC 0.022%.
  • Respondent’s alcohol policy had been replaced with new policy which allowed PAC below 0.02% – previous policy zero tolerance.
  • The applicant had not been trained on new policy but had been trained on previous policy. Commission found that despite respondent not conducting training on new policy the applicant’s behaviour measured against any of the policies formed a valid reason for dismissal.

 

Commentary

 

According to WorkCover NSW (for eg) publication “Alcohol & Other Drugs”:

 

“If a worker refuses to be tested it cannot be presumed that they are intoxicated.

Workers have a legal right to refuse to be tested, unless specific legislation, contracts or employment agreements provide otherwise [my emphasis].

 

Tip: Put it in your contracts of employment and have a strong, published policy in place.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.