Beers Before Work Not Grounds for Dismissal

A former Guard at the Villawood Immigration Detention Centre has won his unfair dismissal case in the Fair Work Commission (FWC) following his sacking for testing positive to alcohol when he was called in to work on a day off.

What happened?

The Guard worked for Serco from 2011 until his summary dismissal on 18 April 2019.  He told the FWC that he was enjoying 7 days off from his rostered shifts at approximately 4.45 pm on 16 March 2019 when he was contacted by his employer and offered a shift commencing that evening.  He said he’d consumed two beers during the afternoon and believed he’d be under the required level of 0.00 by the commencement of the shift.  He drove to work and clocked in around 5.40 pm.  He was then subjected to a random alcohol breath test which recorded 0.037 on the first occasion and, 0.032 on the second occasion 10 minutes later.  He was then told to go home.

The next day, 17 March 2019, the Guard was contacted by his employer and offered another shift, which he accepted.  It wasn’t until 20 March 2019 that the Guard was contacted by the HR Manager and told he was being stood down pending an investigation.   He attended a disciplinary meeting on 28 March 2019 and provided a written response to the allegations regarding his conduct on 1 April 2019.  The Guard was dismissed, summarily, at a meeting on 18 April 2019.

Before the FWC, Serco argued the Guard was well aware of its policy requiring a 0.00 alcohol reading.  It said the Guard had the opportunity to decline the additional shift, but that he instead took a calculated risk in accepting it.  It also argued the Guard was not entirely truthful when asked how many drinks he’d consumed during the testing procedure.

What the FWC found

Deputy President Bull of the FWC found that there was a valid reason for the Guard’s dismissal in that he agreed to attend work despite knowing that he could be in excess of 0.00 and therefore in breach of the policy of the employer.   However, the Deputy President observed that the policy only provided for a worker who tests positive to be stood down immediately and given a formal warning at the start of their next shift.  The DP found there is no reference to dismissal being an outcome unless another positive reading occurs. Serco did not apply this aspect of the policy to the Guard, on the basis that he’d committed serious misconduct.  The DP rejected the argument and found the policy provided for a lesser outcome than dismissal.  The DP also took issue with the fact that Serco appeared to have little regard for the fact the Guard had accepted the shift while on a day off.

Serco was ordered by the FWC to reinstate the Guard.

Morcos v Serco Australia Pty Ltd [2019] FWC 7675

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