Rail Worker with 40 Years of Flawless Service Unfairly Dismissed Over Positive Alcohol Test: Fair Work Commission

The Fair Work Commission (FWC) has ordered the reinstatement of a long-serving rail worker who was sacked for testing positive for alcohol after finding the decision to dismiss him was disproportionate to the misconduct involved.

The worker was employed by Queensland Rail as a Track Worker at the Queensland Rail Roma Depot.  He had worked for Queensland Rail for almost 39 years.  On 24 March 2022 he returned a positive test for alcohol during a Queensland Rail random alcohol and other drugs (AOD) test conducted at his workplace.  The worker initially blew 0.037 Breath Alcohol Content (BAC) and, after being tested again 20 minutes later, he blew 0.025 BAC.  Queensland Rail terminated the worker’s employment on 24 June 2022 on the grounds that he had provided a positive test for alcohol which breached its policy requirement that all workers must be under the prescribed limit for alcohol and drugs when signed in for work, in the workplace, rostered on duty, on call, or when representing Queensland Rail at any event or workplace.

In the FWC

The worker told the FWC that he sticks to a strict routine of ending his drinking and being in bed by 8.30-9.30pm each night, even while working away.  On the night before he returned the positive test, he did as he always did and walked home from the workplace at 3.00pm and drank his routine amount of alcohol: about 325mls of Johnnie Walker Scotch and Coca-Cola No Sugar as a mixer.  He underwent the drug and alcohol testing around 7.00am the following morning. 

The worker told the FWC that at the age of 63, and with limited literacy and technology skills, he would struggle to be retrained into a role that will provide for his family’s economic stability.  The FWC also heard the dismissal had a significant effect on the worker’s family, with his adult son having to return to the family home to assist with meeting the family’s everyday expenses.

Outcome

Commissioner Simpson of the FWC determined that there was a valid reason for the worker’s dismissal given he failed the alcohol test in breach of the employer’s policy.  Further, the Commissioner found that the dismissal was procedurally fair.  However, the Commissioner concluded that the dismissal was nevertheless unfair, having regard for the worker’s long period of otherwise unblemished service and the impact of dismissal on him.  Commissioner Simpson said:

…given the particular circumstances concerning the Applicant, including his age, his ability to obtain other employment, his unblemished work record over approximately 40 years, the financial and personal impact on him and his family, and the fact that I accept that he genuinely believed he would have a zero BAC at the time he reported for work on the morning of 24 March 2022, which was not an unreasonable belief given his previously recording a zero reading on numerous previous occasions when tested, added to the evidence of Dr O’Toole that the claimed pattern of behaviour which I accepted he followed would have been expected to produce a zero result, that the decision to terminate the Applicant was not appropriate in all of the circumstances.

…

The circumstances taken together result in a conclusion that the dismissal was disproportionate to the gravity of the misconduct in the circumstances of this case.

The Commissioner ordered Queensland Rail to reinstate the worker and to pay him 50% of his lost wages.