Zero Tolerance Policies – Not a Good Idea

In a recent Fair Work Commission decision, a long-term employee was terminated for serious misconduct after failing a drug test. Even though the test showed a low level of the particular drug it was above the cut-off in the company’s policy.

The FWC accepted that the employee’s breach of the drug and alcohol policy gave the employer a valid reason for dismissal and had followed the necessary procedures including giving the employee notice of the reason for his dismissal given an opportunity to respond to the reason for dismissal and allowed the employee to have a support person present at the various meetings.

However, the Commission ruled that the employer incorrectly assumed that termination was the default outcome where the company’s actual drug and alcohol policy allowed for other disciplinary actions, such as warnings, counselling or performance improvement plans. Also, the testing was not done in accordance with the policy and the low concentration of the drug in the system indicated the employee was not impaired or intoxicated at work.

In addition, the Commission noted the employee cooperated in the investigation and had 27 years of service, with no prior disciplinary issues, and made significant contributions to the company.

The Commission ordered for the employee to be reinstated.

Many employers adopt a zero-tolerance approach to employee misconduct in the context of drug and alcohol use. This requires that the employer not give any consideration to any mitigating circumstances advanced by any employee who has been found to have breached the employer’s drug and alcohol policy. Imagine returning from a work lunch having had one light beer. This would still show an alcohol reading that was not zero. Does that justify termination which like the above, would be a disproportionate response. A policy breach might instead warrant a warning or counselling instead of dismissal.