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NSWIRC orders reinstatement of worker who refused drug test |
Whilst the New South Wales Industrial Relations Commission (NSWIRC) found that the worker's refusal to take an alcohol and drug test and his threatening and abusive behaviour was reprehensible, they held (on appeal) that the worker should be reinstated because the dismissal was disproportionate to the gravity of the misconduct alleged and thus disciplinary sanction would have been more appropriate in the circumstances. |
The worker had been behaving erratically and asked to take a drug and alcohol test. However, he repeatedly refused to do so. After allegedly behaving in an abusive and threatening manner, he left the work premises and was dismissed from his employment the following day. |
At first instance, Commissioner O'Neill of the NSWIRC upheld the worker's dismissal. He found that by refusing the reasonable requests of his employer to take a drug and alcohol test, the worker had placed himself beyond the reasonable control of his employer and the employer had every cause and reason to terminate his employment. |
On appeal, it was decided that the initial refusal to take the test was at odds with the primary purpose of the Alcohol and Other Drug Management Procedure of the company, which was aimed at behaviour modification rather than disciplinary action. Despite the fact that the employer had relied on the worker's abusive and threatening behaviour as the basis for the termination, the full bench held that Commissioner O'Neill's deliberations and conclusions were based on the worker's refusal to take the drug and alcohol test. |
Further, the Commissioner had erred in both law and principle by failing to consider the worker's 33-year history of employment at the steelworks and the personal and economic consequences of dismissal. Taking these factors into consideration, the full bench held that the termination of employment was disproportionate to the alleged misconduct. |
Accordingly, the appeal was upheld and the worker was reinstated to his former position with full continuity of service for the purpose of calculating any redundancy benefits. However the order for reinstatement was subject to the condition that the worker agree to testing in accordance with the return to work requirements of the Alcohol and Other Drugs Management Procedure and also that a final warning be placed on the worker's record in relation to his behaviour. |
AWU, NSW (on behalf of Stojanovski) v BlueScope Steel (AIS) Pty Ltd [2004] NSWIRComm 304, 18/10/04. |
peter.mcnamara@cmlawyers.com.au
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