Written by: John Greenhalgh
Does your workplace have a zero-tolerance policy?
Many employers adopt a “zero tolerance” policy in their workplaces, especially when it comes to alcohol and drug violations. However, it is important for employers to understand that merely having a zero-tolerance policy does not automatically warrant dismissal. Recent unfair dismissal cases before the Fair Work Commission (FWC) in Australia have shed light on the complexities employers face when enforcing zero tolerance policies and making dismissal decisions.
In this article, we analyse some of these cases and explore the factors that the FWC considers while determining whether a dismissal is harsh, unjust, or unreasonable.
Case One: Trevor Purves v Queensland Rail Transit Authority T/A Queensland Rail
Mr. Trevor Purves, a track worker employed by Queensland Rail, was dismissed for breaching the company’s zero blood alcohol concentration policy. Despite the valid reason for dismissal, the FWC deemed the termination disproportionate to the gravity of the misconduct. Factors like Mr. Purves’ age, limited employment prospects, unblemished record, and the absence of any positive tests on previous days influenced the FWC’s decision. The FWC also considered the employer’s dominant position in controlling rail infrastructure, which could affect Mr. Purves’ chances of finding alternative employment within the rail industry.
Case Two: Hancock v DP World Brisbane Pty Ltd
Mr. Hancock, a stevedore at DP World Brisbane, was dismissed for violating the company’s “zero tolerance” policy after testing positive for THC, a compound from cannabis consumption. The FWC upheld the dismissal as the breach was deemed a valid reason for termination. Factors favouring the employer’s decision included the safety-critical nature of Mr. Hancock’s role, the clarity of the policy, and Mr. Hancock’s awareness of the consequences for policy breaches. The FWC emphasised that even long-term employment cannot excuse serious misconduct.
Case Three: Matthew Wyss v Omnigrip Direct Pty Ltd
Mr. Wyss, a manager at Omnigrip Direct, was dismissed for failing to follow the company’s zero alcohol policy. Despite Mr. Wyss’ contention that he thought his workday had ended, the FWC found the dismissal fair. The factors that influenced the decision were Mr. Wyss’ breach of his duty of fidelity to the employer, lack of remorse, and failure to comply with the CEO’s direction. The FWC also considered the safety risks posed by Mr. Wyss driving a company vehicle after the team lunch where alcohol was consumed.
Key Takeaways for Employers
These cases illustrate the complexity of enforcing zero tolerance policies and making dismissal decisions in Australia. Employers should carefully assess various factors to avoid unfair dismissal claims:
- Role and Work Environment: Evaluate whether the employee’s role involves safety-sensitive tasks and the potential risks associated with policy breaches.
- Employee Awareness: Ensure that employees are aware of the zero-tolerance policy and its consequences through regular training and reminders.
- Clear Policy Language: Have a well-drafted policy that clearly communicates the obligations and consequences of policy breaches.
- Length of Service: Consider the length of service of the employee; long-standing employees may carry a higher risk of being perceived as unfairly dismissed.
- Consistent Treatment: Treat all employees consistently for similar policy breaches to avoid claims of unfair treatment.
- Industry and Legal Standards: Consider the industry or legal standards when assessing the gravity of an employee’s misconduct.
- Procedural Fairness: Always afford procedural fairness to employees by notifying them of the reason for termination and giving them an opportunity to respond.
Employers should exercise caution when implementing zero-tolerance policies and making dismissal decisions. The recent cases before the Fair Work Commission highlight that while breaches of such policies may provide valid grounds for dismissal, other mitigating circumstances must be considered to determine the fairness of the termination. By being aware of these complexities, employers can make more informed and fair decisions, reducing the risk of facing costly unfair dismissal claims.
Contact our Employment Law team today for tailored advice regarding zero-tolerance policies or unfair dismals.
Disclaimer:
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.
Greenhalgh Pickard’s Employment & Litigation Team
