Intoxicated garbo overturns dismissal on appeal

A rubbish truck driver who was sacked after recording a low-level alcohol reading pre-shift in June 2024, has successfully overturned the original decision that his dismissal was fair, and won reinstatement courtesy of a Full Bench decision which explores the nuances of an employee being “intoxicated at work” for the purposes of the serious misconduct definition, while highlighting the importance of employees having opportunity to respond to all concerns their employer may be weighing when considering termination.

The driver had 16 years’ service, including seven as a TWU delegate and health and safety representative, when he was dismissed in July 2024 for a number of “safety incidents” occurring between October 2023 and June 2024, which culminated in his recording an alcohol reading of 0.013% at 3.38am (before a 4:15am shift on 21 June) and 0.007% when retested at 4.22am, after he had attended a TWU function the night before.

Whilst the driver argued he “felt he had been targeted on minor issues lately” owing to his responsibility as a TWU delegate and health and safety representative and stressed that his second alcohol reading had been “below the company policy of 0.00”, Commissioner McKinnon of the Fair Work Commission (FWC) upheld his termination in February 2025. Contrary to the driver’s submissions, the Commissioner found that the alcohol reading combined with previous infringements, including his role in two crashes, driving the dual-control rubbish trucks on the wrong side, exceeding the posted 10km/hour speed limit on a public road adjacent to the depot and a purported breach of confidentiality which involved him allegedly threatening his managers, warranted his dismissal.

Appealable error

In response to the driver’s application for appeal, the employer advanced that there were “a significant and large number of unchallenged findings of misconduct, some of which involved safety critical policies, by an individual who had been trained and held positions of site delegate and health and safety representative”, adding that the appeal should not be allowed because any errors of fact, if established, occurred “against the backdrop of a person who had a record of defying lawful and reasonable policies and directions” and “would not make any difference to the outcome”.

A Full Bench of the FWC disagreed, granting the driver permission to appeal Commissioner McKinnon’s decision, on the basis he “was denied procedural fairness at first instance by reason of the Commissioner making adverse findings in relation to [his] conduct that was not relied upon by [the employer] at the time of dismissal or in the proceedings at first instance”.

Fundamentally, the Full Bench assessed the Commissioner erred in determining the driver had been given reasonable opportunity to respond to his employer’s concerns before he was terminated, because she had regard for additional allegations around the driver’s conduct following the purported confidentiality breach, and his exceeding the 10km/hour speed limit on a public road, when these concerns were not put to the employee in the show cause letter or notice of termination, and were not originally advanced by the employer as the reasons for dismissal.

Finding that Commissioner McKinnon’s decision should be quashed on the basis the driver might have presented other evidence of direct relevance to the additional allegations had he been on notice these concerns were being considered by the Commissioner, the Full Bench opted to redetermine the matter.

Intoxication a valid reason, dismissal still harsh

Turning to consider the reasons for dismissal (exclusively as outlined to the driver in his letter of termination), the Full Bench concluded that the only infringement that contributed a valid reason for termination was his low-range alcohol reading, recorded during random testing pre-shift on 21 June. Although the driver was legally able to drive his own car at the time, the recording constituted a breach of the employer’s drug and alcohol policy, for which he was given opportunity to respond to.

Despite this, the Full Bench observed that in light of the driver’s length of service and personal circumstances (being aged in his fifties with a family to support), the fact that his intoxication at work had occurred because he had been drinking in a social setting eight hours before testing and he was committed to complying with the employer’s policy in future, the Full Bench found his dismissal harsh and unfair. The Bench concluded the appropriate disciplinary outcome would have instead been a written warning and a period of self-testing and random testing.

The driver was awarded reinstatement and continuity of service with the FWC to receive submissions on the quantum of backpay for the one-year period since termination.

Barber v Veolia Recycling and Recovery Pty Ltd [2025] FWCFB 141 (10 July 2025)