Worker sacked for drink driving outside work hours fails in appeal

A brewery's drug and alcohol policy that prohibited workers from driving under the influence - whether on company time or not - was reasonable, a FWA full bench has ruled in dismissing a sacked worker's appeal. Also in this article, FWA has found that a worker's "pre-work" alcohol reading warranted his dismissal.

In March 2009 the process worker, employed by Lion Nathan subsidiary J Boag and Son Brewing Pty Ltd, was sacked for breaching the company's drug and alcohol policy after he was charged with drink driving - outside of working hours.

He lodged an unfair dismissal claim, but in October 2009 proceedings (see In an unrelated case...) AIR Commissioner Barbara Deegan found the dismissal wasn't harsh, unjust or unreasonable.

"There is no doubt that the [worker] was aware of the employer's responsible drinking policy," she said.

"The policy was clear that drinking to excess and driving outside of work hours, even on personal business and in a private car, would be a breach of that policy."

Commissioner Deegan said that while not every workplace policy that attempted to constrain employee activities outside of work was necessarily reasonable, one that directed workers to refrain from criminal conduct that could have a deleterious impact on the business could be deemed legitimate.

"A manufacturer of weapons or fireworks would have a legitimate interest in ensuring that its employees did not use its products in a manner which was contrary to law, might bring the product into disrepute or could contribute to the case for greater restriction on sales or even complete prohibition of the product," she said.

"In my view the same applies to a manufacturer of alcohol."

The worker appealed, arguing before an FWA full bench that Commissioner Deegan had failed to consider whether the sacking was harsh, in that it was a disproportionate response to the incident.

But Senior Deputy Presidents Jennifer Acton and Matthew O'Callaghan, and Commissioner Anna Lee Cribb rejected the claim, finding Commissioner Deegan had taken into account the worker's good employment record; his skill levels and age; his awareness of the policy and the consequences for breaching it; and his blood alcohol level (of 0.154) at the time he was charged.

The blood alcohol level, the bench noted, did not need to be addressed to establish whether the termination was reasonable. However, it was a fact "weighing against a conclusion that Boag's termination of [the worker's] employment was a disproportionate response".

Mr Nick Kolodjashnij v J Boag and Son Brewing Pty Ltd [2010] FWAFB 3258 (3 May 2010)

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