By Mike Toten Freelance Writer

An employer has lost an unfair dismissal case because a change it made to its alcohol/drug testing policy was not properly communicated to employees. The employee successfully argued that he was unaware of the change.

 

Facts of case

The employer had lowered the threshold for blood alcohol level from 0.02 to zero. The employee, a stevedore was tested after a workplace incident involving a collision while operating a crane, and returned a result of 0.025 initially and 0.017 in a confirming test later. He claimed that because he was under 0.02 he was in the clear.

He was later dismissed for serious misconduct, both for the test result and past disciplinary issues that included previous alleged breaches of alcohol/drug tests. The employer added that he had knowingly drunk alcohol shortly before his shift commenced.

The employee was also a workplace union delegate, and claimed that this was the real reason he was dismissed. The Fair Work Commission (FWC) found on balance that this was not the case.

 

Were employees notified of the policy change?

The employer reduced the threshold level to zero in March 2023, but there was evidence that a prominent sign advising a threshold of 0.02 remained on-site at the workplace until at least May 2024 (after the employee was dismissed).

The employer claimed it had notified employees of the change via text and email messages to employees’ personal accounts, and at toolbox meetings. However, evidence revealed that the messages simply included copies of the policy and did not specify how the policy had changed. The FWC noted that this approach could not guarantee that employees would open text and email attachments, even more so with employees who operated machinery and seldom used IT in the course of their work. The email accounts they used were personal ones, not employer-supplied.

The FWC described the communication strategy as inadequate, and said that a better approach would be to provide actual training that included testing their knowledge of any changes and information about the number of hours they needed to be alcohol-free in order to return a zero test result. Employees should also be required to sign off that they had read and understood the policy.

Nor had the employer explained the consequences for employees of a test result above zero. There was no previous evidence of employees facing severe disciplinary consequences for recording test results between zero and 0.02. 

The employee had previously been suspended and warned for failing to wear a safety harness and allegedly failing to submit to an alcohol/drug test, after a safety incident involving him and other employees. Later, he returned to work after lunch late due to a car accident and it was alleged that he had again refused to be tested (the employee claimed that he was never told to be tested). He was then suspended, received a final warning and had a pay cut and downgraded job classification. The sanctions were later reduced, with the employee agreeing to them “under duress”. These incidents occurred more than four years earlier.

Notably, the employee was allowed to return to work after allegedly refusing to be tested, which indicated that the employer was not concerned about his capacity to work.

The FWC concluded that the evidence regarding previous incidents and tests was inconclusive and inconsistent, and it was not possible to conclude that the employee’s alleged breaches of the policy (ie refusing to be tested) had occurred. Nevertheless, given the employee’s overall employment history, there was a valid reason for dismissal.

 

Decision

The FWC found that the employee was foolish to consume alcohol before his shift, however he would have been unaware that the policy change to zero alcohol level had occurred. Taking that into account, plus the employer’s failure to train employees and inconsistent application of warnings, as well as the employee’s age and length of service, dismissal was unfair in all the circumstances. 

The FWC ordered reinstatement, but with a 50% reduction in lost pay due to breaching the policy. It believed future alcohol/drug testing would be sufficient to manage the future employment relationship.

 

What this means for employers

If you make a significant change to a workplace policy, you need to ensure employees are fully informed about the change, trained in how to comply with it, and required to sign off that they have read and understood the policy and its changes. It will not sufficient merely to tell employees that a policy has changed, nor only to mention it during brief toolbox meetings.

 

Read the judgment
Mr Craig Hancock v Sydney International Container Terminals Pty Limited [2025] FWC 516 (20 February 2025)