This case further highlights the need for an employer to follow a consistent and fair approach when dealing with alleged misconduct.
Following on from our article last month about James v Royal Bank of Scotland decision, Commissioner Wilson of the Fair Work Commission has confirmed the need for employers to implement and promulgate clear workplace policies.
Ms Cannon brought an unfair dismissal claim arising from the termination of her employment for serious misconduct on the night of 4 November 2014.
Ms Cannon was a chicken harvester/machine operator employed by Poultry Harvesting. On 4 November 2014, Ms Cannon attended the Melbourne Cup and consumed a number of glasses of wine during the course of the day.
During the course of Ms Cannon’s shift that night another employee formed the view that Ms Cannon was intoxicated. Ms Cannon, the employee stated, had been passed out in a truck instead of performing her duties and as a consequence 50-60 chickens had been smothered or run over. The employee phoned the supervisor Mr Geminian and on arrival at the workplace he too formed the view that Ms Cannon was intoxicated, as she smelt of alcohol.
Mr Geminian dismissed Ms Cannon however Ms Cannon continued for the remainder of her shift as Mr Geminian did not communicate to Ms Cannon or any other employee that she should not be allowed to work. The reason for the termination was the employer’s assessment that Ms Cannon had arrived at work intoxicated, causing a serious and imminent risk to the business and the health and safety of workers. A further reason was that she had neglected her duty during work hours by falling asleep in a truck.
Ms Cannon denied that she had been intoxicated, and gave evidence that she and other employees would often sleep while they were waiting for delivery trucks to arrive.
While the employer argued that it had a “zero tolerance” policy in relation to drugs and alcohol in the workplace, the Commission found that the written policy was in fact aimed at correcting problematic behaviour, involving counselling, testing and other steps. Further, it was not clear that Ms Cannon had seen or had access to the policy. As a result, the employer could not rely on the policy to justify the termination.
The Commission ultimately determined that there was no valid reason for the termination, as the employer had taken no steps to verify or investigate the allegation that Ms Cannon was intoxicated and unable to perform her duties. In addition Ms Cannon had not been provided with an opportunity to respond to the allegations made against her, or the opportunity to have a support person present. Finally, the employer contradicted its own decision by allowing Ms Cannon to continue for the remainder of her shift, despite having formed the view that she was unfit for work.
As a result, the dismissal was found to be unfair.
Lessons for employers
This case again highlights the importance for employers to be clear on what their policies expect of staff and that staff are made aware of the policies and expectations of the employer in relation to their behaviour at the workplace.
If an employer wishes to take a stand on drugs and alcohol in the workplace, the employer should develop a policy which not only identifies that position, but also sets out which employees might be required to undergo drug and alcohol testing, the testing methods likely to be used, and the consequences for returning a positive test.
Our Melbourne Workplace Relations, Employment and Safety team is giving a seminar in relation to workplace policies on 3 June 2015.
Consistent and fair approach
Employers need to follow a fair approach that is reasonable in the circumstances and consistent with their policies. In this case, despite the fact that the employee appeared to have engaged in misconduct, there was a total failure of procedural fairness, and the employer had not even followed the process as set out in the policy to deal with instances where drug and alcohol were involved. Had the employer taken a more measured approach, it may have been able to fairly terminate Ms Cannon’s employment.