Evidence is Key – Unfair Dismissal Despite Suspected Intoxication at Work

The Fair Work Commission (FWC) has emphasised the importance of clear evidence alongside clear policies in finding that an employee was unfairly dismissed as the employer did not have sufficient evidence to justify his termination by way of breaching the employer’s drugs and alcohol policy.

In Baydon Johnson v Faulkner Farming Pty Ltd [2024] FWC 1052, Faulkner Farming Pty Ltd (Faulkner) elected to terminate Mr Johnson, a manager, who showed up to work after having consumed 12-15 standard drinks the night before his shift. Faulkner purported that Mr Johnson’s dismissal was on the basis that he had attended the farm whilst under the influence of alcohol which was in breach of Faulkner’s drug and alcohol policy (a policy which Mr Johnson had signed a declaration of understanding in respect of).

Mr Johnson maintained that he was not under the influence of alcohol.

The FWC did not accept that email or hearsay evidence could be used to establish Mr Johnson’s impairment. The FWC went further, highlighting that it cannot be assumed that Mr Johnson ‘must have been impaired’ based on how much alcohol he had consumed the day prior. It was also noted that Faulkner had failed to call the supervisor who sent Mr Johnson home from work as a witness, and it was found to be relevant that Mr Johnson was allowed to drive himself home.

The FWC held that had the influence of alcohol been established successfully ‘it is highly unlikely I would have found his dismissal was unfair’. However, due to the failure of Faulkner in proving that Mr Johnson was impaired, and the absence of supplementary evidence (such as breathalyser tests or detailed file notes) it was ultimately found that the dismissal was unfair.

Accordingly, the FWC made orders for Faulkner to pay the Mr Johnson approximately $5,000 in compensation.

This case serves as a reminder to managers that sufficient evidence is needed when looking to terminate employees who have breached respective drugs and alcohol policies. Whilst it is imperative to have clear policies in place, one cannot simply rely on those policies in the absence of clear supporting evidence.

 

This article was prepared with the assistance of Challita Tahhan*