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Managing people

To dismiss a “drunk” employee, you need proof, not assumptions

Learn why the Fair Work Commission ruled the termination of this employee to be an unfair dismissal.

21 May 2024

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

An employee was dismissed because the employer accepted his word that he had been drinking the night before work. But because no objective proof of unfitness for work was obtained, the dismissal was unfair, and the employer had allowed him to drive home afterwards. There was also other evidence that the employer may have been looking for an excuse to dismiss him, because of other issues.

Facts of case

The employee was an Assistant Manager at a farm that had a “zero alcohol” policy. Around 8pm the previous night, he was asked to report for work early next morning. The employee had been drinking that evening and between 7pm and 11pm consumed between 12 and 15 standard drinks.

The next morning he overslept and arrived at work late. The General Manager assumed the drinking made him unfit for work and refused to let him work, but allowed him to drive home. The General Manager dismissed him the next day, citing lateness and “disengagement” from work as well as alcohol as the reasons. It appeared that some tension in the working relationship between the two had gradually been building up.

The employee had given verbal evidence of how much alcohol he had drunk the night before, and the General Manager relied on that, but no objective test of alcohol presence was done. The employee argued that therefore there was no “proof” he was under the influence of alcohol.

Decision

The Fair Work Commission (FWC) found that there was no reliable evidence that the employee was intoxicated and unfit for work. The other reasons for dismissal (lateness and “disengagement”) were not valid reasons, given that he received notice of the work shift only the night before.

The FWC did add, however, that the employer would probably have had a valid reason to dismiss him if it had obtained evidence of his unfitness for work due to alcohol. Ruling out reinstatement, it awarded compensation of $5,142.

What this means for employers

Many employers require employees to comply with a “zero alcohol” policy that usually includes testing of employees (either random or compulsory).

To decide whether an employee is “too drunk” to work, you need to rely on the measured results of a test, not on what you physically observe or what the employee tells you. Otherwise, as in this case, a dismissed or disciplined employee can argue that he/she was unfairly treated.