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Friday Workplace Briefing

Employers Standing Up to Drug and Alcohol Use in the Workplace – Stronger Support for Employers Through the Fair Work Commission (FWC)

This week, Andrew and Nina discuss employers standing up to drug and alcohol use in the workplace and how the FWC will be offering stronger support in these situations.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Episode Transcript

Andrew Douglas: All right, I think we’re onto the main topic. Please say we’re onto the main topic of the day.

Mathew Reiman: I think we are onto the main topic.

Andrew Douglas: We are onto the main topic, look at that.

Mathew Reiman: There it is.

Andrew Douglas: Now, Matt, we’re going to talk about this at a high level very quickly and come back to the case.

Mathew Reiman: Yeah, absolutely.

Andrew Douglas: Alcohol and drug testing is something which was essentially blue collar.

Mathew Reiman: Yeah.

Andrew Douglas: Going back 25 years ago when Matt was not born, probably…

Mathew Reiman: Oh, feel flattered, but no.

Andrew Douglas: There was a New Zealand case which dealt with airlines that talked about what you needed to do for alcohol and drug testing. It became the law throughout Australia and New Zealand. So essentially what it said is, Look, there’s got to be an identifiable risk to actually undertake it.

Mathew Reiman: Yeah.

Andrew Douglas: For random testing, it must be a high-level risk.

Mathew Reiman: Yes, that’s right.

Andrew Douglas: And it must be genuinely random.

Mathew Reiman: Yep.

Andrew Douglas: And you have to have a policy and procedure which you have consulted with people on. That you’ve then trained and assured they’re competent in. And they understand the risk that a breach could lead to termination and it needs to be educational in nature, not just punitive.

Mathew Reiman: Yep.

Andrew Douglas: And there was a standard that existed at that time which is the Australian and New Zealand standard, that dealt with it. So that was that case. But what’s been emergent over the last five years maybe is it started to sneak into white collar, hasn’t it?

Mathew Reiman: That’s right. Yeah. And in a bit of an unexpected way, because as Andrew, you pointed out, traditionally it was always, really, this primary focus about safety, about where that intoxication could cause a risk to the health and safety of others in operational…

Andrew Douglas: And that was the primary risk. It was the primary risk.

Mathew Reiman: The primary risk. That’s right. But what we’ve increasingly seen in this white collar space, and really this case, the Robert Hunter case is a great example of it, is this bleeding into the blue collar… Sorry, the white collar, excuse me, where it comes to the performance of the role and the standard of the performance of the role and those duties, you know?

Andrew Douglas: Yeah. In this case, it was a financial services employee who turned up to work on a Friday with all the physical exhibiting signs of being intoxicated. He smelt like alcohol, he had bleary red eyes. He was clearly hungover. And his work really was to provide financial advice to people. Now, there was some issue of fact about the fact that there was no tests taken at the time. There was a drug and alcohol policy but it wasn’t quite well aligned with any of the Australian standards. It didn’t talk about safety and so on. It was the more punitive form.

Andrew Douglas: Can I just? Just to give a bit of a highlight to this, I don’t want you to rely much on this judgement.

Mathew Reiman: No.

Andrew Douglas: Because as Matt explains it, I want you to understand it’s clear the Commissioner in this case made a decision around the credit and then fitted the facts and the decision around it.

Mathew Reiman: That’s right.

Andrew Douglas: So the facts aren’t that good, but finish, please finish. I just wanted to put that as a…

Mathew Reiman: Yeah. Yeah. So, and the Commissioner said, Look, even though you don’t have the tests, I’m going to conclude based on the witness evidence that he was intoxicated even though his evidence was that he’d had one or two drinks and no one else could give evidence about the number of drinks he had had. So that’s the main issue. But on that basis, the Commissioner said, Because you’ve got this policy and he needs to perform his duties in providing financial advice at a proper and high standard, I’m satisfied that that intoxication inhibits his ability to perform his duties not in a safe way, but just perform them to the proper standard. And on that basis, found that the dismissal was fair.

Andrew Douglas: Yeah, and look, I think on that basis this decision is going to grow.

Mathew Reiman: Absolutely, yeah.

Andrew Douglas: And we’ve seen a few decisions before that have hint at it. Can I just say, without testing regulation 107 is a reverse onus provision. And is under the influence of alcohol and the old case when under the influence is smashed off your chops.

Mathew Reiman: That’s right. Yeah.

Andrew Douglas: So there is an enormous amount of risk that sits around his decision which is it’s not a happy decision based on law.

Mathew Reiman: Yeah. I think that’s fair.

Andrew Douglas: It’s a decision where he thought the guy was smashed off his face and formed that view, then thought, how can I stitch together an argument against him.

Mathew Reiman: That’s right.

Andrew Douglas: That’s my feeling. Sorry to the Commissioner if he’s watching. But the things that don’t change about this is alcohol and drugs are inherently dangerous. So although there is a focus, and I wish the Commissioner had of thought about safety when he said it. The moment I have a drink and I jump in a car, I create a risk. So when I leave work, I’m sent home. You’d never let me get in a car.

Mathew Reiman: No, absolutely not.

Andrew Douglas: Okay, so there is an inherent risk to that person and other people’s risk when they consume alcohol and drugs. That’s just truth and that’s what safety law exists around. When you go to introduce a policy like this, then the safety law says “You must consult with it thoroughly.”

Mathew Reiman: Yeah, absolutely.

Andrew Douglas: Which requires a risk profiling. And part of the risk profiling here would be your capacity to undertake the work.

Mathew Reiman: Yeah, that’s right.

Andrew Douglas: And that’s what this case gives us the way through to.

Mathew Reiman: Absolutely.

Andrew Douglas: Under an award, it’s the type of thing that could lead to termination of employment.

Mathew Reiman: It absolutely could.

Andrew Douglas: And so it could be a major change. I think it probably is a major change.

Mathew Reiman: I agree.

Andrew Douglas: And therefore, consultation in the process of risk analysis and then in the delivery of it, two different stages is required. And then people must be competent in it. They must understand. You might consult but that doesn’t mean they’re competent.

Mathew Reiman: No, exactly.

Andrew Douglas: So then there is another layer of training and competency testing. And if you can’t do that… And then the policy must have the methodology that is recognised for appropriate testing.

Mathew Reiman: By the Australian Standards. A lot of the Australian Standards.

Andrew Douglas: So look, I just want… That law hasn’t changed.

Mathew Reiman: No.

Andrew Douglas: As Matt’s been so articulate about what’s changed here is the primary risk that’s being looked at.

Mathew Reiman: Yeah.

Andrew Douglas: It’s saying, “Yes, safety is an issue, and safety can be the bigger issue.”

Mathew Reiman: Yes. Yeah.

Andrew Douglas: Blue collar. But white collar, if you’re unable to do the inherent requirements of your job as a result of being intoxicated. Whatever that degree is and you’ve got a policy that defines it, you get around regulation 107. And that’s the…

Mathew Reiman: That’s the big change.

Andrew Douglas: That’s the home run, isn’t it? If you get your policy right.

Mathew Reiman: Yeah.

Andrew Douglas: You go around…

Mathew Reiman: You’ve got serious misconduct.

Andrew Douglas: Okay.

Mathew Reiman: Yeah. You’re laughing.

Andrew Douglas: There you go. We didn’t go too overtime, didn’t we?

Mathew Reiman: No, no.

Andrew Douglas: So let’s jump into the case study.

Mathew Reiman: Yeah, let’s do it. Let’s do it. Alright. I’ll read it Andrew?

Andrew Douglas: Yeah.

Mathew Reiman: Sorry. You sound like you were about to read it.

Jonas had been working with Membrey accountants (MA) for 21 years. He was a senior manager. His relationship had soured with his wife who he suspected was having an affair with his best friend. True or not, he left the matrimonial home on Friday the 21st of April, 2023 and stayed at a hotel. When he arrived at work in the city office on Monday the 24th of April, he appeared unwashed, dishevelled, and smelling of alcohol. He sat alone in the open plan office and was observed to cry. His manager approached and asked him to come to a meeting room.

When he arrived at the meeting room there was an alkotest on the table and a document headed “Alcohol and drug policy.”

His manager Prue handed him the policy. It was a blur to him. He had never heard of it, never been consulted on it and pushed it back across the table. She explained it was a lawful direction because she had cause to believe he was under the influence of alcohol. He looked up at Prue, his eyes full of tears and said, In the last 72 hours, I have lost my wife and now you want to want to take my job away? You can eff off. He turned to leave and she said I direct you to go home and we will meet again tomorrow at 10:00 AM. He left the building.

When he returned to 10:00 AM the next day, he was tidy and neat with his wife as a support person. Prue explained at the start of the meeting that Jonas had refused to comply with alcohol testing as required under MA’s policy. Jen, Jonas’s wife, explained there is no doubt Jonas was drunk. He had wrongly formed the view she was having an affair and went on a three day bender. Both Jen and his best friend have rallied around him, made him feel safe in the marriage and as a teetotaller, it is unlikely he will drink again.

Andrew Douglas: I think we have a… Oh, there’s more.

Mathew Reiman: Oh. There were exceptional circumstances. This was the first time…

Andrew Douglas: That’s what Jen said.

Mathew Reiman: I’ll speed through it.

This was the first time he consumed alcohol in memory. Jonas cried throughout the meeting. Prue said she heard all that. But he created a risk to himself, others, and their business by attending work under the influence of alcohol and she was summarily terminating his employment for breaching the drug and alcohol policy that required, amongst other things, two things. One, not to attend work affected by alcohol and two, to submit to an alkotest when directed upon reasonable cause. It is noted the policy did not have a verification of the handheld test and did not comply with Australian standards.

Andrew Douglas: Alright. We’ve definitely got questions.

Mathew Reiman: We do have questions.

Andrew Douglas: And I’ll read those.

Mathew Reiman: Yeah.

Andrew Douglas: My question really was the policy enforceable? And the answer is no.

Mathew Reiman: No. Big old no. No consultation under health and safety. No consultation under the award…

Andrew Douglas: No training and competency.

Mathew Reiman: No, exactly right.

Andrew Douglas: And no method, prudent method of testing and regime around it, which is safe and reasonably fair.

Mathew Reiman: Yeah, so the content of the policy and the manner in which it was introduced both rendered it unenforceable.

Andrew Douglas: Was there a valid reason to summarily terminate Jonas’s employment?

Mathew Reiman: I think no, I mean he…

Andrew Douglas: Harder question on that.

Mathew Reiman: Yeah, a harder question. Because through his proxy, the wife admits to being intoxicated at work and there is a safety risk…

Andrew Douglas: And that meets regulation 107.

Mathew Reiman: That’s right. That’s right.

Andrew Douglas: That’s why I sort of threw it in. So you can look sideways when your policy fails. But the problem they’ve had is they refer to a breach of the policy.

Mathew Reiman: That’s right. That’s the key point.

Andrew Douglas: So there is no valid termination.

Mathew Reiman: No, I agree. Yeah, agree.

Andrew Douglas: Would Jonas succeed in an unlawful dismissal claim and what was the likelihood of reinstatement?

Mathew Reiman: I think he would succeed, absolutely.

Andrew Douglas: For two reasons. One, no valid, but if you got over that line, unquestionably harsh.

Mathew Reiman: Yeah, that’s right. That’s right. And barely a process to begin with as well.

Andrew Douglas: That’s right.

Mathew Reiman: Absolutely. Now reinstatement, I think probably.

Andrew Douglas: Yeah, I think so.

Mathew Reiman: I think probably, yeah.

Andrew Douglas: I think Prue’s…

Mathew Reiman: Yeah.

Andrew Douglas: Got herself in a bit of trouble.

Mathew Reiman: Absolutely. She’s in real trouble. There you go.

Andrew Douglas: Yeah, okay. Jonas brought a worker’s compensation claim the day he was sent home saying he suffered emotional stress from home, that’s the relationship. He was dealt with… So it should be “He was not dealt with.” So he’s dealt without… I wrote this by the way. And placed at risk into the street feeling suicidal, drunk and scared without support or intervention. Can I just say in workers compensation which I know is gumpy law. Okay, as it doesn’t relate to any other workplace law.

Mathew Reiman: No.

Andrew Douglas: So would this be a breach of reasonable management action under bullying? Could be, but not necessarily. Is it definitely a breach of reasonable management action?

Mathew Reiman: Yes.

Andrew Douglas: Absolutely

Mathew Reiman: No care, slamming the policy down, sending him out the door without checking on his health and wellbeing. It’s all the classic examples.

Andrew Douglas: Just nonsense. Anyway. So anyway, not nonsense. It’s worker’s compensation law. He would succeed.

Mathew Reiman: Yeah, absolutely.

Andrew Douglas: Did Prue breach her safety obligations in not understanding a health check ensuring he was safe when left and further ensuring there was someone to care for him when he went home? I think that I don’t think Prue would be prosecuted but I think she’d have a good reason to be disciplined.

Mathew Reiman: Yeah.

Andrew Douglas: Because what she did is place an employee at risk.

Mathew Reiman: Absolutely. Absolutely.

Andrew Douglas: Terrible risk.

Mathew Reiman: Yeah, without… She says that she’s formed the reasonable view that he’s intoxicated. Well if you formed that view, simply sending him out onto the street out the front without any concern, assistance…

Andrew Douglas: And knowing he doesn’t have a wife to go to.

Mathew Reiman: Well, that’s right. Yeah. He’s literally just told her “There’s my situation.”

Andrew Douglas: There’s nowhere safe to go.

Mathew Reiman: That’s right, yeah.

Andrew Douglas: So, look, interesting stuff I think.

Mathew Reiman: Absolutely.

Andrew Douglas: I think, look, we’ve… The things I want to take out of today and there’s some things I really want to construct. One is I think drug and alcohol policies are good things to have at work.

Mathew Reiman: Yeah.

Andrew Douglas: We are chatting to, when we’re doing recruiting today I made it really clear this office doesn’t do lunchtime drinking except in exceptional circumstances and if people drink, they go home and they don’t come to work afterwards.

Mathew Reiman: Yes. Yep.

Andrew Douglas: White collars should consider the fact that when people come to work, they come in to actually perform at the highest level of the inherent requirements of their job. And if they’re going to be affected by drug and alcohol, yes, there should be an educative element to it. You shouldn’t be shooting people on site with it. But at the same time, it’s not… If you’re unable to do your job, if you’re unwilling to be fit, willing and able to do your job, what trust and confidence could you have in an employee who thinks it’s okay to come to work affected by alcohol.

Mathew Reiman: Absolutely. Well, drug and alcohol, it’s cultural. So if it’s cultural and you’re not applying some sort of standard about that behaviour you come to these same scenarios.

Andrew Douglas: So that’s one thing I wanted to say about today. This is something which is a learning. We’ve now got a judgement, after a series of what we call obiters.

Mathew Reiman: Yeah.

Andrew Douglas: Discussions around judgements that say, “Look, this is a course you can take take it up and take a chance.” The second one is where you see really high levels of risk exhibiting in your workplace, like heights, psychological hazards and motorised mobile plant. Understand that the regulator is taking a very different view and understand the courts are taking a much more stringent view and are much more aggressive in the penalties they’re handing out. And finally we’ve seen the new bits of legislation starting to pervade into everyday practise. We’ve seen safety regulators prosecuting for bullying.

Mathew Reiman: Yep.

Andrew Douglas: For sexual harassment. Now we’ve seen the first cases starting to come out of the new legislation around sexual harassment. I want you to understand this is a whole new world. I don’t want you to think that six months ago and now is the same.

Mathew Reiman: No, no, absolutely not.

Andrew Douglas: It is… This is not a matter of tweaking the policy. Somebody said at a presentation “So what do I need to do the policy?” I said, “Well step back. What do you need to do at a governance level given these positive duties that now exists to provide a safe place at work?” That’s the question you should be asking. That has a whole lot of steps along the way.

Mathew Reiman: Absolutely, Andrew.

Andrew Douglas: And I guess for Matt and Nina and I we’ve spent the last 12 to 20 weeks saying it’s coming.

Mathew Reiman: Yeah.

Andrew Douglas: And what we’re now starting to see is the wave crashes.

Mathew Reiman: Yeah.

Andrew Douglas: Every week a new prosecution from the regulator, every week a new exploitation of new provisions under the legislation.

Mathew Reiman: Yes, exactly.

Andrew Douglas: Please don’t think you can just change your policies and get out of jail.

Mathew Reiman: Yeah, very true. And also maybe don’t hire children.

Andrew Douglas: Yeah. Look on that note Matt, see you later mate. Thanks very much. Thumbs up.

Mathew Reiman: Thanks. Bye everyone.

Andrew Douglas: Thumbs up. Cheers. Bye-bye.

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