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Fair Work Commission rules – Employers cannot assume that employee is working ‘under the influence’


The MBA ACT has recently received numerous enquiries which relate to dealing with employees who are suspected of working under the influence of alcohol or certain illegal substances. This could be serious misconduct by an employee and potentially result in danger to the workplace and other employees, it is therefore critical to follow the correct process to investigate and discipline employees in these circumstances.


An employee of Faulkner Farming was dismissed on 5 January 2024 for alleged misconduct when he went to work on 4 January 2024 after consuming a considerable amount of alcohol during the evening of 3 January 2024. It was believed the employee consumed between 12 and 15 beers on the night of 3 January 2024 and was late to work the following morning, this caused the employer to question the fitness of the employee to attend work.

Faulkner Farming had an Alcohol and Drug Policy which forbids employees from starting or returning to work whilst under the influence of drugs or alcohol. A representative of the employer made several observations in e-mail and verbal communications where the employee’s fitness was discussed, but did not perform any form of test to determine the presence of alcohol in the employee’s system. The employee was dismissed on 5 January 2024 for breaching the Alcohol and Drug Policy, the employer relied solely on visual observations and the e-mails of its representative in dismissing the employee.

The employee lodged an application for unfair dismissal with the Fair Work Commission (‘the Commission’).

Was the dismissal fair?

One of the questions the Commission was required to decide was whether the employee’s dismissal was unfair. Section 385 of the Fair Work Act 2009 provides that an employee’s dismissal is unfair if, amongst other factors, it was harsh, unjust or unreasonable. One of the factors to take into account when determining if a dismissal was unfair, unjust or unreasonable is whether there was a valid reason for the dismissal related to the person’s conduct.

The Commission found that the admission by the employee about the amount of alcohol he drank the night before, did not constitute a valid reason for dismissal in the absence of reliable evidence, such as a breathalyzer test, to demonstrate he was under the influence of alcohol when he attended work the next morning. The observations made by the employer’s representative constituted hearsay, was not reliable, and was rejected.

Accordingly the Commission found the dismissal to be unjust and unreasonable because there was no valid reason for dismissal.

Key takeaways

The Commission’s decision reaffirms that an employee’s dismissal must be just, fair and reasonable. An employer should ensure that it keeps detailed written record of misconduct of its employees and have the appropriate evidence available to support a dismissal.

If you need advice or assistance in reviewing your policies or procedures, please reach out to our Workplace Relations and Legal Team on 02 6175 5900.