By Mike Toten Freelance Writer

A manager was awarded compensation of $64,000 after she was dismissed for refusing to take a breath test at work. The Fair Work Commission (FWC) held that the employer was not justified in insisting she take a test, it handled the process in an unfair manner and there were other sanctions it could have used. 
 

Facts of case 

The employee was one of three staff members who consumed alcohol while out at lunch for four hours and then returned to work. One co-worker was “observed to be disruptive” upon his return. When the employer demanded he undertake a breath test, he refused and resigned on the spot.  

The employer then decided the other two employees should also be tested, “on suspicion” they had also been drinking. The manager was called into a meeting without being told its purpose, and when she admitted to having one alcoholic drink, the HR manager demanded she be tested. The manager described the tone of the meeting as an “interrogation” and felt ambushed by it and “tarnished by association” (with the co-worker). The HR manager claimed the test was necessary to determine whether she was safe to resume work. The employee asked why she was being tested, and the reply was because she had been to lunch and was suspected of drinking alcohol, and on return there had been an incident involving a co-worker. 

When the employee asked what would happen if she refused a test, the HR manager said she would be suspended and, pending investigation, could be dismissed. Meanwhile, the other co-worker also resigned. The employer claimed the test was “random” but also required “under suspicion”.  

The employee asked for a written copy of the investigation and the allegations against her, but the HR manager refused and claimed the allegation was that she had refused a directive (to take a test). Later he added that she had “spoken loudly” at work, and this added to the employer’s suspicion. The employee was summarily dismissed for “serious misconduct”, but without being given a specific reason. Decision 

The FWC found the dismissal to be unfair and lacking a valid reason, because: 

The employer did not provide a clear reason for dismissal. Nor did it provide a clear reason for demanding that the employee take a test. 

Merely “speaking loudly” was not evidence of possible intoxication, which had a variety of physical symptoms, eg unsteady on feet. Those symptoms were set out in the alcohol/drugs policy. 

The employer did not act consistently with its policy, relying instead on “suspicion” and “guilt by association”. The policy did not contain a requirement to be tested in the circumstances that arose.  

The policy did not provide a specific sanction for refusing to take a test. The employer had less severe sanctions than dismissal it could have used.  

The employer failed to provide a copy of the policy when the employee first requested it. Therefore, she was entitled to refuse to be tested at the time. 

It awarded compensation of $63,500, based on six months’ remuneration, and taking into account the employee had obtained another, but lower paid, job. 
 

What this means for employers 

If an employer has an alcohol/drugs policy, it must stick to observing its provisions, in terms of reasons for testing, testing procedure and consequences for employee non-compliance. In this case, the policy did not cover the circumstances that arose, consequences for non-compliance were not specified, and the demand to test the employee was based on a “suspicion” that wasn’t supported by the evidence. 


Read the judgment 

Ms Chantelle Tamati v MQT Pty Ltd [25] FWC 2607 (4 September 2025)