Is it appropriate to terminate the employment of an employee who drinks whiskey before work? According to the Fair Work Commission – yes it is – but it might still be an unfair dismissal!
Trevor Purves v Queensland Rail Transit Authority T/A Queensland Rail  FWC 3343 (21 December 2022)
On 21 December 2022, the Fair Work Commission (FWC) handed down its decision in Trevor Purves v Queensland Rail Transit Authority T/A Queensland Rail  FWC 3343.
The case concerned Mr Purves, who was employed as a track worker by Queensland Rail. He was dismissed after it was discovered that he had been drinking whiskey (around half a bottle of Johnnie Walker) before coming to work and returned a positive alcohol reading with a breathalyser test.
The policy for the employer was zero tolerance for alcohol in the system of rail workers due to the high safety risks that come with the position and the area of work.
The employee put forward in the application for unfair dismissal the following:
- An unblemished and long standing record with the company of 39 years
- He is 63 years old with limited literacy and technology skills
- He would have grave difficulty in obtaining any work due to his age and lack of skills – if the dismissal were to stand he would be unable to work in the same type of job the he has been qualified and certified to undertake for decades as the manner of the dismissal would mean he could not work in any capacity for the Queensland Rail (whether employee or contractor) in the future
- Personal circumstances and effect were quite severe with his wife diagnosed with cancer and his wage being heavily relied upon, they would not be able to keep their house that they had been living in and would also need to enter the volatile rental market and the supporting a son who has had to already move back home with them to support with the mother’s care and is on an apprentice wage
- Likely that he would have to move interstate to obtain a job with any similarity to the one he has
- The BAC reading itself was faulty and other readings previously for another employee had returned faulty
- Training provided was not at the standard required
The Employer put forward in very strong terms that they considered, in particular, the effect on the employee the dismissal might have. However, the employer put forward that the safety risk and breach of policy overrides this.
The Fair Work Commission had to consider a number of issues.
It firstly asked and answered the question – was this a valid reason for dismissal?
This was really not in dispute. There were questions around the accuracy of the test but all in all the Commission found there was a valid reason for dismissal.
Was the dismissal harsh?
The prime question that the Fair Work Commission must ask themselves is whether the dismissal was harsh, unjust or unreasonable.
Apart from natural justice and procedural fairness and the valid reason for dismissal, a common element that is explored in the case law is the “harshness” component. Namely the effect the dismissal will have on the employee.
“………weighing of the gravity of the misconduct against the various factors that mitigate against dismissal as a proportionate (fair) response to the misconduct, including, of course, factors subjective to the particular employee (such as age, length of service, service record etc) to determine whether those matters in combination rendered dismissal a disproportionate penalty for the misconduct such that it ought properly be characterised as ‘harsh’ notwithstanding the existence of a ‘valid reason’.”
Taking these considerations into account the Fair Work Commission found the following:
- His grave difficulty and inability to find other employment
- His long unblemished record of 39 or so years
- The grave and dire financial consequences on his family
- His genuine belief that the Johnnie Walker whiskey he drank was not going to show up as him being over 0.00 on a BAC which is not unreasonable considering he has not tested above zero on previous occasions (doing the same thing)
- The conclusion made by the Employer was too harsh and the penalty of termination of employment was a disproportionate penalty for the misconduct
The Fair Work Commission decided the dismissal was harsh and ordered reinstatement of the employee with a 50% payment of lost pay.
What can Employers and HR learn from this case?
In this case, the employee was sacked for having whiskey before work and blowing a reading which was above zero. However, the Fair Work Commission reinstated the employee and found that the dismissal was unfair ultimately because the misconduct was disproportionate to the penalty and the grave effect the dismissal would have on the employee.
This case highlights the importance that a valid reason for dismissal is not enough in the decision making process. Other factors such as a long unblemished record and the effect on their family and financial consequences must be taken into account.
It also highlights for Employers that the Fair Work Commission do expect a degree of leniency from Employers when it comes to mistakes made by employees especially for long term employees.
This is potentially a harsh result for the employer considering the potential health and safety ramifications. It may well have been a different story if the employee had a blemished record or was not as long standing.
Advice provided to the Employer may have led to a recommendation of disciplinary action to the extent of a final warning as opposed to termination of employment.
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 Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post at 166 Trevor Purves v Queensland Rail Transit Authority T/A Queensland Rail  FWC 3343
Jonathan Mamaril, Director
Jonathan Mamaril leads a team of handpicked experts in the area of employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.