Unfair Dismissal – Two

Unfair Dismissal – One
June 1, 2011
Unfair Dismissal – Three
June 1, 2011

Unfair Dismissal – Two

Unsuccessful challenge to an imperfect drug and alcohol test procedure

In Ley v McMahon Contractors Pty Ltd [2011] FWA 694, Ley challenged his dismissal for alleged breach of the employer’s drug and alcohol policy.

Ley had signed an Australian Workplace Agreement (AWA) with a condition that he comply with a drug & alcohol testing procedure. He underwent a site specific induction which provided that blood alcohol testing was to be carried out on every shift and that the site alcohol limit was zero.  He was breached for a positive blood alcohol content reading and was provided with a drug & alcohol warning notice (the “Notice”).  The Notice provided that the employer viewed the breach of policy as a serious offence,  that a reoccurrence might result in his immediate dismissal without further warning and required him to repeat his acknowledgment that he had reviewed the drug & alcohol policy and understood it.  The policy specified that testing positive a second time within a 12 month period meant the employee was likely to be terminated in accordance with the first and final warning issued for the first offence.

Several months later, Ley returned another positive test. There was some dispute as to what followed, however it was accepted that the initial test was checked three times on another machine, which returned two negative “pass” results and a “fail” result, then tested a further time on a further machine for a positive “fail” result. The first and final tests were conducted on machines that actually gave a specific alcohol reading. The intervening test machine simply gave a “pass” or “fail” result. Ley admitted that he had been drinking at a social rugby game the day before.  Ley was stood down, interviewed by the mine manager, and then terminated by letter later that day.

Ley argued that his dismissal was unfair as the repeat testing was not in line with the documented procedure and that once the repeat test had been a “pass” he should have been allowed to proceed with work. He further alleged that the employer had not followed its process because the policy erroneously referred to the contents of subparagraphs which did not exist (a numbering error in the document which had not been picked up by HR).

In evidence, it was established that Ley’s initial and final tests (which both gave positive “fail” results) were on the most accurate machines operated by the employer and that the 3 other tests (two “pass” and one “fail” results) were conducted on a less accurate passive sensor, without an alcohol reading.

After considering the evidence, the FWA did find that there was a valid reason for dismissal. Ley was fully aware of the drug & alcohol policy and he had registered fail readings.  The retesting was not inconsistent with the policy and was justified to resolve uncertainty.  Ley was aware and notified of the reason for his termination and he had been given an opportunity to explain his conduct prior to his dismissal.  No support person was present at his termination meeting, however, Ley did not make an issue of this in his application.

In the circumstances, FWA was satisfied that Ley had not been unfairly dismissed and accordingly, his application was dismissed.

Source :

Carter Newell Lawyers – Carter Newell | Publications

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