In a decision of the FWC handed down this week, Fair Work Commissioner Bissett decided that an employee who had been dismissed for a breach of his employer’s zero tolerance drug and alcohol policy was unfairly dismissed, because of reliance placed by the employer on an previous “first and final” warning which was found not to be warranted.

The Commissioner found that the employee did breach the drug and alcohol policy by attending for work with a positive blood alcohol content and had a “generally dismissive attitude” to his employer’s attempts to implement improved health and safety standards.   Although the employee apparently considered that he knew best on the safety standards that should be applied in the workplace, his views on this were not relevant.  There was nothing to suggest that the employer’s health and safety standards were unreasonable, and no reason why the employee should not comply with them.

The Commissioner found that the employee had chosen to ignore OH&S requirements on previous occasions, including by failing to wear safety glasses and failing to use a safety harness while working at a height, but had not been given any warning in relation to these incidents.

The employee had however received a “first and final” warning in 2014 in relation to an incident involving the repair of a faulty bagging machine.  The employer said that he had failed to tag out the machine and call in appropriately qualified trades to undertake repairs and instead attempted electrical repairs himself without isolating the machine from the mains power supply.   In deciding to terminate the employee’s employment, the employer relied on this previous warning to justify summary dismissal.  The Commissioner found that also though the employee had soldered electrical wiring on the machine when he should not have done so and deserved some warning or sanction for this, a first and final warning was not warranted.    

Commissioner Bissett noted that “a ‘first and final warning’ appears to have become the disciplinary tool of choice in many workplaces, regardless of the severity of the transgression of the employee.” 

 “A first and final warning is a harsh penalty to impose on an employee, particularly where, as in this case, it is a first incident of misconduct. Having given such a harsh sanction, I do not consider that it can be relied on to terminate employment for a second incident of misconduct in circumstances where it was not warranted in the first place.

The Commissioner then found that even if the bagging machine incident had warranted a first and final warning, that incident in conjunction with the employee’s other health and safety infractions may have justified dismissal with notice, but not summary dismissal as had occurred in this case.

The employee was awarded compensation equivalent to 12 weeks’ pay, reduced by 30% to take account of the contribution the employee’s misconduct made to the employer’s decision to dismiss him and to reflect the employee’s apparent lack of commitment to attempts to improve health and safety.

For more information contact:

Jim Rutherford
Principal
Harwood Andrews
T: 03 5226 8579
E: jrutherford@harwoodandrews.com.au

Sonia McCabe
Senior Associate
Harwood Andrews
T: 03 5226 8558
E: smccabe@harwoodandrews.com.au