In a recent unfair dismissal decision, the Fair Work Commission (the FWC) has provided support for the position that employees bear the responsibility of complying with workplace policies and procedures and that a failure to do so can amount to not only a valid reason for dismissal but may constitute serious misconduct warranting summary dismissal.
In Stacey v Mondelez Australia Pty Ltd [2024] FWC 1701, an employee was summarily dismissed by Mondelez Australia Pty Ltd (the Employer) for refusing to undergo drug and alcohol testing in accordance with the Employer’s Drug & Alcohol Safe Workplace Policy (the Workplace Policy).
The employee was employed as a confectioner, working in the manufacturing area of the Employer’s business. The Workplace Policy made it clear that there was a zero-tolerance approach to drugs and alcohol in the workplace.
On 12 October 2023, the employee was selected to participate in a random drug and alcohol test. The employee admitted to having smoked marijuana the night before and refused to take the test. The employee messaged his supervisor advising that he would not take the test and that he was leaving the workplace.
The supervisor replied to the employee’s message, saying “OK”, which the employee took to mean approval for him to leave work without taking a drug or alcohol test.
The Employer sent an email later that day advising the employee he was suspended with pay pending an investigation into the incident.
On 24 October 2023, the Employer sent the employee a show cause letter stating that the Employer had formed the view that the employee’s actions constituted serious misconduct. The employee’s response was that he had not been subject to any previous disciplinary action, he was demonstrating attempts to reform his behaviour, he was willing to undertake any drug and alcohol program, there were various mitigating circumstances involving sick family members, and that he left the site on the day of the test because he panicked.
The employee was invited to attend two further meetings but failed to attend on both occasions. The employee was notified of his dismissal on 1 December 2023.
In his unfair dismissal application, the employee alleged that the Employer should have done more on the day of the test to have a discussion with him about the consequences of not taking the test.
The Employer disagreed, noting that the employee had unilaterally decided to leave the workplace, and it was therefore not possible to have such a discussion with him.
In any event, the FWC found the employee’s argument to be “blame shifting”. It found that it was the employee’s responsibility to comply with the Employer’s request to take the test and the Employer did not bear any responsibility for the employee’s decision to evade the test and leave the workplace.
The FWC was satisfied that the employee attended for work under the assumption that he had detectable levels of THC in his blood stream and that this was a breach of the Workplace Policy, whilst also jeopardising the health and safety of himself and others in the workplace.
The FWC was also satisfied that the employee had no compelling reasons for refusing to take the test in accordance with the Workplace Policy. It was this refusal to undertake the testing which amounted to a failure to follow a reasonable management direction that amounted to serious misconduct warranting summary dismissal.
The FWC was not satisfied that the employee was unfairly dismissed, and the employee’s application was therefore rejected.
This decision supports the position that an employee’s refusal to comply with workplace policies, particularly those relating to drug and alcohol use in zero-tolerance workplaces, may constitute a valid reason for dismissal. Further, such a refusal may amount to serious misconduct warranting summary dismissal.
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