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10 April 2019
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.
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:
Guorgi believed that in these circumstances the drug and alcohol policy had not applied to him.
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:
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.
This decision highlights the following to employers:
For further information on this topic please contact Sally Moten or Justine Krajewski at Lander & Rogers by telephone (+61 2 8020 7700) or email (firstname.lastname@example.org or email@example.com). The Lander & Rogers website can be accessed at www.landers.com.au.
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