A recent appeal decision of the Fair Work Commission confirms that it would be inappropriate to reinstate an employee who had tested positive for Nurofen Plus after failing to declare that he had been taking it, as required by his employer's drug and alcohol policy.

Facts

Mr Guorgi, a compliance officer at Transdev (a public transport business), was fired after testing positive for Nurofen Plus. Consequently, Guorgi initiated unfair dismissal proceedings, arguing, among other things, that:

  • the lower strength painkiller had not impaired his ability to perform his job; and
  • this was why he had not submitted the medical declaration form as required by the drug and alcohol policy.

Guorgi believed that in these circumstances the drug and alcohol policy had not applied to him.

Fair Work Commission's view

At first instance, Commissioner Booth found that Guorgi had breached the drug and alcohol policy because he had failed to report that he had been taking Nurofen Plus and had failed to submit the required declaration form. This, along with his lack of contrition and insight, led the commissioner to conclude that there had been a valid reason for dismissal.

However, Guorgi was awarded A$17,795 in compensation, as the commission found the dismissal to be harsh, unjust and unreasonable for several reasons – for example:

  • procedural errors by Transdev in considering previous unrelated allegations against Guorgi (most of which were unsubstantiated) that the commissioner found troubling; and
  • the impact of the dismissal on Guorgi, including:
    • he could no longer pay rent;
    • he had to relinquish his home;
    • his car had been repossessed; and
    • that he had not worked since his dismissal due to health reasons and difficulties obtaining employment given his specialist role.

Guorgi appealed the decision because he wanted his job back. He argued, among other things, that the commissioner had erred in finding that the drug and alcohol policy applied in this case.

The full bench held that the drug and alcohol policy, read as a whole, obliged employees to notify Transdev if they intended to take non-prescription medication and to submit a medical declaration form regardless of whether the medication impaired their ability to safely perform their role. Guorgi did neither. The full bench considered there was no error in the conclusion in the first-instance decision that this had been a valid reason for dismissal.

The full bench agreed with other reasoning in the first-instance decision, including that Guorgi should be compensated instead of reinstated. It held that the evidence weighed heavily against reinstatement because Guorgi had been in a safety critical role as a compliance officer and Transdev had not been confident that he would correctly administer the drug and alcohol policy given his attitude towards it.

Comment

This decision highlights the following to employers:

  • Non-compliance with a drug and alcohol policy can be a valid reason for dismissal. Employers must also closely consider mitigating circumstances prior to making the decision to dismiss an employee.
  • Employers should review their drug and alcohol policies to make sure that they are adequate – it could mean the difference between an employee being reinstated following a purported breach of the policy or not.
  • Employers should check that their drug and alcohol policies are clear and include:
    • the steps required by employees in relation to their obligations;
    • the means by which employees can discharge their duties; and
    • the stipulated timeframes for each step.
  • Employers should avoid diluting workplace investigations with historical and unsubstantiated allegations by focusing on the key issues.

For further information on this topic please contact Sally Moten or Justine Krajewski at Lander & Rogers by telephone (+61 2 8020 7700) or email ([email protected] or [email protected]). The Lander & Rogers website can be accessed at www.landers.com.au.

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