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Ask Ed: Can I fire an employee who turns up to work drunk?

Ask EdJanuary 7, 2015

Ask Ed: Can I fire an employee who turns up to work drunk? (Last Updated On: July 4, 2017)

Question: How do I go about assessing if an employee is under the influence of alcohol? I have a senior employee who has demonstrated a problem with alcohol. During some weekends and occasionally during the week he has a binge drinking session. Over the last year this has occurred 4 to 5 times. On some days he is either still intoxicated or heavily hung over. In my employment contract I have ensured to include that being under the influence is a dismissible offence. Given the need lately, I have issued a warning letter. Should he present himself for work under the influence of alcohol, in my opinion, am I able to dismiss him or am I required for him to take a breath / blood test?

Further, if he says he has a problem and is taking counselling, do I still have rights to dismiss him if he presents under the influence?

Personal issues coupled with Australia’s well-established drinking culture means dealing with employees who may be intoxicated at the workplace presents complex problems for the employer.

Intoxication at the workplace is classified as a serious misconduct under Fair Work regulations, and is rightly a valid reason for dismissal without notice. Despite this, the standard of proof for such a dismissal is extremely high, and a hasty dismissal without evidence can easily result in an unfair dismissal claim. The key here is to ensure that you have solid proof of your employee’s misconduct before making a decision.

An important point to consider is that the issue may not be as simple as a drinking problem. All the symptoms of a bad hangover may be due to issues that you’re unaware of. Identifying the real cause of the employee’s behaviour is the best first step, with the help of – you guessed it – a drug and alcohol test. These tests can be done by a medical practitioner or arranging for a mobile testing company to visit the business.

However, alcohol or drug testing employees can be tricky due to an employee’s right to privacy, meaning you can’t sit him down with a breathalyser on the spot without support. You have to check that you have the right policies and contractual terms in place to ensure that the employee is aware of his obligations in regards to alcohol consumption, as well as the possibility of being randomly tested for drugs and alcohol. Without these policies, he may have lawful grounds to refuse the assessment.

The fact that your employee is undergoing counselling adds to the complexity. There are powerful protections in place for workers managing sickness, injury or stress. Any disciplinary action against the employee should provide an adequate opportunity for him to raise problems he is managing personally.

While the law respects that at times the employer may simply be unaware of an employee’s personal issues, it takes a dim view of rash action against an employee who has disclosed illness or injury. There must be a balance in approaching the problem from the right perspective: combining concern for the employee’s welfare with the business’ operational requirements for staff to be fit and ready to perform their duties.

It’s worth noting that other factors can come into play when dealing with serious misconduct which may affect the disciplinary or dismissal process. If you’re facing a similar situation, call us on 1300 651 415 for advice.

Have a curly situation at work, or simply want to know more about the Fair Work Act? Drop us an email with your question and we’ll choose a reader’s question to answer in our newsletter every month.

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