The Fair Work Commission has recently held an employer unreasonably directed a worker to take a random alcohol breath test without clearly explaining why, and then summarily dismissing her unfairly for refusing it. She received the maximum amount under the Fair Work Act.

The manager went out for a four-hour lunch at a licensed premises with two co-workers in April. One of the other attendees “was observed to be disruptive in the office” when he returned. The director told the co-worker he needed to undergo a breath test because he suspected he had been drinking at lunch. He resigned.

The HR manager asked the manager to “come into the meeting room for a quick chat”. The manager assumed they would discuss the co-worker’s wellbeing. The discussion turned to the lunch, and the manager admitted she had one alcoholic drink, and the HR manager asked her to undergo a drug and alcohol test. The manager said she soon felt the “quick chat” had turned into an “interrogation” and asked about the grounds for the test.

The HR manager responded with comments about the co-worker and claimed it would be a random drug test, but then advised it would be “post incident and for cause”, because she had been to lunch.

The HR manager also said the company had a duty of care to ensure she was not impaired and had to ensure she would not drive while affected by alcohol.

The manager said she felt “ambushed” and “that she was being tarnished by association”. She asked what would happen if she refused, and the HR manager said the employer would suspend her and following a formal meeting, she could face dismissal.

The employer suspended the manager with pay, and later that day, the third lunch attendee also resigned.

At a meeting on April 14, the manager again sought to clarify the reason for the test, and the HR manager told her it would have been a random test, but also that “the test was required ‘under suspicion'”.

The manager asked for a written record of the investigation that had occurred while she had been stood down and the allegations against her, but claimed the HR manager refused to provide anything in writing, and told her “the allegation was refusing to follow a lawful instruction by your employer to do a drug and alcohol test”.

She then asked for a copy of the drug and alcohol policy and claimed the HR manager stormed out and “threw the documents across the table” at her 10 minutes later.

After reading the policy, the manager again tried to clarify the reason for the test, and the HR manager explained that “the test was requested as a post incident and for cause arising from the incident that had occurred” with the coworker who had resigned, and because she went out to lunch with him.

The HR manager then said that he had requested the test because another employee had overheard the manager “speaking loudly” and asking about the date, and this “unusual behaviour” warranted a test.

The employer summarily dismissed the manager and a letter the following day confirmed her dismissal for serious misconduct.

The Commission said the termination letter failed to clearly state the reason for dismissal. If the direction had been consistent with the policy it would have been lawful, but he found “the grounds for requesting the test, whether ‘random’, ‘post-incident, or for cause’, or ‘on suspicion’ was not made clear to [the manager]”.

“Further, had the justification been for suspicion on return to the office – speaking loudly, asking about the date – I would regard it as unfounded as those matters did not give rise to the requisite suspicion…that conduct does not fit comfortably with the signs of intoxication listed in the policy – staggering, incoherence, confusion, disorientation, being unsteady, engaging in inappropriate behaviour, or having an altered state of consciousness”.

He said the attendance at lunch would not give rise “to a suspicion that she had been drinking such that the policy would apply”.

The manager’s refusal to take the test in the circumstances that the employer did not provide her the policy in the initial meeting, only did so at her request during the subsequent meeting, and did not direct her to any specific provision that entitled the company to require her to undergo a test.

The Commission further observed that the policy fails to provide a specific sanction for refusing a test, and the employer failed to consider options other than dismissal. The direction to take the test was unreasonable, and the decision to dismiss the manager not “sound, defensible or well founded”, and without a valid reason.

The manager was awarded $63,500.

Lessons for employers

The lesson is that employers should have policies to meet such a situation. This employer didn’t. Once a policy is in place, that will guide who can be directed to take a breath test and under what circumstances. The lack of a coherent policy meant that the employer floundered in their attempt to address the serious issue of work being conducted while under the influence.