It is best practice for employers to ensure that their policies and procedures are properly communicated and understood by employees, especially in circumstances where the policy relates to important topics such as the health and safety of employees.
A failure to meet this standard can be observed in recent the decision of Hancock v Sydney International Container TerminalsPty Limited [2025] FWC 516, where the Fair Work Commission (FWC) ordered the reinstatement of an employee, finding that the poor communication of important policy changes rendered the dismissal harsh and unreasonable.
In early March 2024, Sydney International Container Terminals Pty Limited (the Employer) updated its Drug and Alcohol Policy (the Policy) to state the acceptable levels for blood/alcohol concentration (BAC) for an employee or contractor had changed from 0.02 BAC to 0.00 BAC.
The Employer informed employees about the changes to the Policy by:
In late March 2024, the employee consumed one glass of wine prior to attending his night shift. During his shift, the employee was involved in an accident and was required to submit to drug and alcohol testing.
The employee’s first drug and alcohol test recorded a reading of 0.025 BAC, and his confirmatory test recorded a reading of 0.017 BAC. As a result, the employee was directed to leave work and was subsequently suspended for breaching the Employer’s Policy.
The Employer initiated a show cause process and ultimately decided to summarily dismiss the employee for serious misconduct in breaching its Policy.
In his unfair dismissal application, the employee submitted he was unaware that the cutoff levels in the Policy had changed, and he had complied with what he believed to be the Employers Policy. Further, the employee argued that the Employer had failed to take reasonable steps to communicate the Policy changes and therefore did not have a valid reason to dismiss him.
The Employer argued that dismissing the employee for breaching the Policy was an entirely appropriate action in order to ensure that the Policy would be adhered to in the future, especially given the importance of the Policy in relation to work health and safety in a high-risk environment.
The FWC considered the submissions of both parties and first formed the view that the employee’s conduct in receiving an above 0.00 BAC result did amount to a valid reason for dismissal.
However, the FWC did not accept that the Employer communicated the significant changes to the Policy in an appropriate manner and that therefore the dismissal was harsh and unreasonable given the poor communication style.
In its criticism, the FWC made comments including that:
The FWC concluded that the dismissal was harsh and unreasonable because it was a real possibility that the employee was not aware that the cutoff level had changed due to the Employer’s poor communication style.
The FWC commented that the Employer had every right to place a high degree of importance on the Policy, so was confused why the Employer invested so little in its communication of the changes.
The FWC also noted it was particularly important for shift worker employees to understand the Policy changes because they were more likely to attend events prior to commencing work, therefore increasing the need to understand their obligations under a drug and alcohol policy.
Finding that the dismissal was unfair, the FWC then turned to whether reinstatement was an appropriate remedy.
The FWC disregarded the Employer’s submission that the employee’s return would significantly undermine the integrity of the Employer’s ability to enforce the Policy in the future and was satisfied that the Employer and employee could restore the sufficient level of trust and confidence for the relationship to continue.
Overall, the FWC held that although there was a valid reason to dismiss the employee for breaching the Policy, the dismissal was harsh and unreasonable in circumstances where the changes were poorly communicated and of which the employee was not aware. Therefore, the FWC found it appropriate to reinstate the employee.
To properly defend similar claims, employers should implement simple record keeping practices, such as requiring employees to acknowledge receipt of policies, training and comprehension, to ensure that they are able to prove that their employees were informed about and understood the employer’s expectations.
Having terminated an employee, this decision is an example of the ‘worst case scenario’ outcome for an employer as they were required to reinstate the employee to their previous position. Reinstatement of a dismissed employee can often lead to the employer losing credibility and authority with its employees who would see the outcome as a failure by the employer to properly implement its policies and disciplinary processes. This would make the employer's task that much harder the next time it needs to take disciplinary action.
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