The Fair Work Commission has upheld an employee's application for unfair dismissal following a positive blood alcohol test at work.

The employee, a maintenance worker, underwent a pre-work blood alcohol test. His blood alcohol content first showed at 0.013%, and 0.006% some 30 minutes later. The employee was stood down for the day, and his employment was terminated summarily 4 days later for breach of the company's zero-tolerance Drug and Alcohol Policy.

Whilst the employee argued that his blood alcohol readings were low and still within legal limits to drive a B-double truck, Commissioner Bissett considered this as a rather dismissive attitude towards workplace health and safety on the part of the employee. The Commissioner also acknowledged that the incident was a clear breach of the Company's zero-tolerance policy which required employees to present to work with 0.000% blood alcohol.

However, the employer relied upon other grounds to terminate, namely an earlier first and final warning for a safety breach, which the Commissioner found to have been inappropriate. Also in issue was the fact that the employee did not appear to have been given an opportunity to respond to all of the matters being considered in respect of the decision to terminate, including the prior warning. Accordingly, where the first and final warning was found to have been harsh in the circumstances, and given the nature of the readings in question, the Commissioner found the dismissal to have been unfair.

The employee was not reinstated but was awarded compensation of $11,507.16.

The FWC has been increasingly willing to confirm the appropriateness of dismissals for breach of zero-tolerance work health and safety policies (see an earlier post on this topic at: Summary for breach of employer drug policy not unfair).

However, this decision suggests that, despite the existence of zero-tolerance drug and alcohol policies, employers should still consider the appropriateness of dismissal for a "first offence", particularly for otherwise lawful, low level breach.

Ingham v Metro Quarry Group Pty Ltd [2015] FWC 6472 (29 September 2015)