In a recent decision the Fair Work Commission has found that an employee was unfairly dismissed after refusing a request to undergo a blood and alcohol test where the employer had not clearly explained the reason for the request.
The Facts
On 10 April 2025 the employee went for a 4-hour lunch with 2 colleagues. One colleague was disruptive after he returned to the office and resigned after he was asked to undertake an alcohol breath test.
The employee admitted that she had consumed one alcoholic drink at the lunch and initially agreed to undertake an alcohol breath test. She then questioned the basis for the test and said she felt ambushed and ‘guilty by association’. Differing reasons were given by the company representatives for why the test was requested. She refused to undergo testing and was suspended.
The third colleague resigned later that day.
On 14 April 2025 the employee attended a meeting about her refusal to undergo the testing. She was told the test was required ‘under suspicion’. She asked for a copy of the company drug and alcohol policy.
The employer’s drug and alcohol policy outlined when a drug and alcohol test could be requested, and listed as the signs and symptoms of alcohol and drug use:
- Staggering, unsteady on feet:
- Slurred or incoherent speech:
- Confusion:
- Disorientation (uncertainty of person, place, or time):
- Inappropriate behaviour and emotional responses (e.g., mood swings): and
- Altered state of consciousness.
The policy did not state any sanction for refusing a test.
After reading the policy she again asked in the meeting why she was required to undergo the test. She was told the test was requested ‘for cause” because on the day she was acting out of character, having been overhead asking another colleague what the date was and also speaking loudly. That was the first time she was told these reasons. The meeting concluded by her being told that her employment was terminated effective immediately.
She applied for unfair dismissal.
The Decision
The Commissioner allowed the application, finding that:
- There was no valid reason for dismissal. It was not clear if the direction to take the test was in accordance with the company’s policy. At the time it was not made clear to her if the rest as “random”, “post-incident”, for “cause”, or “on suspicion”. The employer’s reasons for a test “on suspicion” did not fit the signs of intoxication in the policy. Also the policy and procedure did not include a sanction for refusing a test.
- She was not notified of the reason for dismissal and given an opportunity to respond to the reason. She was not provided with the drugs and alcohol policy until she asked for it. She was not explained the provisions of the policy justifying the request. She was not told in the meeting that she was in breach of her contract of employment and that the employment contract permitted the company to dismiss her immediately.
- The employer employed over 1300 workers on various sites and had access to dedicated human resources specialists.
- The employer failed to consider her past good record and had not considered a disciplinary outcome other than dismissal.
Since the dismissal she had obtained other employment that paid substantially less, and the Commissioner ordered compensation according to the statutory cap of $63,500.
Implications
Employers should clearly explain their reasons when taking action under a blood and alcohol policy.
Before considering disciplinary action employers should also ensure that the policy is up to date and states a relevant disciplinary sanction if the policy is breached.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.