In Briggs v AWH Pty Ltd (2013), Briggs was employed at AWH, which provides storage and associated logistics services. His employment contract included express provisions requiring him to be familiar with all
policies and to observe all lawful directions of AWH. AWH’s Alcohol and Drugs Misuse Policy stated that random testing may be implemented at the discretion of AWH and that a worker’s refusal to undertake a test
would result in disciplinary action or termination of employment for failure to comply.
Briggs refused to perform a random drug and alcohol urine test on the basis that it was not best practice. Briggs requested to take an oral fluids swab test instead, but AWH refused his request. AWH again directed Briggs to take a urine test, warning him that his employment may be terminated if he failed to comply with that direction. Briggs failed to take the test and was subsequently dismissed. He applied for an unfair dismissal remedy under the Fair Work Act 2009 (Cth). The FWC found that it is an employer’s right to make a decision on how to manage their business, including a decision to introduce a workplace policy. Briggs refused to comply with the policy, being fully aware that failing to comply with the direction to be tested would lead to his termination. Accordingly, his failure to undertake the urine test was ruled to be a valid reason for his dismissal.
Mr Ley’s employment was terminated when he breached his employer’s drug and alcohol policy for a second time in a 12-month period. Mr Ley worked at a mine site where there was zero tolerance towards drug and alcohol use.
His employment agreement required him to comply with workplace policies which, if breached, could result in termination. In response to his first breach, Mr Ley had been given a warning that his employment may be terminated if he breached the policy again.
Fair Work Australia (FWA) upheld his termination for the second policy breach. Zero tolerance can be seen to operate rigidly in some circumstances, e.g. when a worker has a small amount of alcohol left in their system from the night before. You must be able to justify zero tolerance on reasonable health and safety grounds. If you do not have sufficient grounds, workers who are disciplined or dismissed under a zero-tolerance policy could challenge the reasonableness of your policy.
Important: Tribunals, such as the Fair Work Commission (FWC), focus on whether a worker poses a risk to themselves or others, rather than the presence of drugs or alcohol in a worker’s system.