Just a Little Bit Over

Just a little bit over? How far over can you be and still keep your job?

According to the Fair Work Commission (FWC) somewhere around a blood alcohol content (BAC) of 0.013%. The FWC has recently found that an employee was unfairly dismissed despite having turned up to work with a 0.013% BAC (half an hour later his BAC reading was 0.006%… still over). On top of this, convinced he had done nothing wrong, the employee, Mr Ingham, maintained that he was still competent to “drive a B-double truck”. Clearly he hasn’t been watching television, passing road-side drink driving warnings or ever been stopped by a booze bus.

The reasons for the decision, beyond this apparent irregularity, are a bit more interesting. The Commission appears to have been keen to make a point that a ‘first and final warning’ is only really a first and final warning when it is justified. Here the employer, Metro Quarry Group Pty Ltd (MQG), had relied on a first and final warning previously given to justify the termination. This previous ‘bagging machine’ incident occurred where Mr Ingham tried to repair a broken machine in an unsafe way – in legal terms, failed to follow safety directions and failed to comply with his duties under the Occupational Health and Safety Act 2004 (Vic). Mr Ingham was alleged to have undertaken some re-wiring of a machine without detaching the main power supply, as well as failing to “tag out” the machine, and call in the appropriate trade qualified people. The Commission thought that in the circumstances such a serious warning, for this action, had not been justified.

The BAC incident, in April 2015, and the bagging machine incident were not, however, Mr Ingham’s only unsafe contributions to the workplace. Although there were no formal warnings evidence was accepted that Mr Ingham had previously:

  • failed to wear personal protective equipment including safety glasses and harness;
  • “wiggled his fingers” at a presenter during a health and safety training presentation, before telling the presenter that he knew how to be safe; and
  • responded negatively to an explanation that, before starting a task, a hazard assessment was required.

The Commissioner did state the belief that Mr Ingham had a ‘dismissive’ attitude toward safety. He also found that, if not for the dismissal for his excessive BAC, Mr Ingham’s employment would not have been long for MQG.

So why was Mr Ingham not so easily bagged, not hung over the coals to dry out?

  • MQG’s drug and alcohol policy, although a “zero tolerance policy” (requiring 0.00% BAC), did not specify that dismissal without notice would be the result of a breach.
  • Evidence surrounding the bagging machine incident was a little too contradictory and unclear. Although unclear, it was thought a first and final warning was a bit much.

So what do we learn from this?

Keep your drug and alcohol policies clear. Only use first and final warnings where it’s reasonable, even when they are safety related. Keep reliable records of all safety incidents.

Despite the initial oddity of the decision, in an effort ‘not to be seen to condone the conduct of Mr Ingham in any way’ the Commissioner noted the deteriorating relationship between Mr Ingham and MQG due to Ingham’s approach to health and safety. Indeed, stating the belief that Mr Ingham likely had no more than 12 weeks of employment left, compensation was accordingly reduced.

A link to the decision can be found here: John Ingham v Metro Quarry Group Pty Ltd [2015] FWC 6472 (29 September 2015)

Photo credit – en.wikipedia.org

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