What to Do If You Suspect an Employee Is Under the Influence at Work

What to Do If You Suspect an Employee Is Under the Influence at Work

Do you suspect an employee is under the influence of drugs or alcohol at work?  Wondering what to do or where you should start?  We’ve included some tips for you below!

Drug & Alcohol Policy

The first two questions are:

  1. Does your workplace have a Drug and Alcohol Policy?
  2. Has training been provided to employees about the Policy?

If the answer to either of the above questions is “no”, you should consider putting this in place straight away.

A well-defined Drug and Alcohol Policy and training can assist employers to effectively manage their staff, by clearly communicating acceptable and unacceptable behaviour in the workplace, and the subsequent implications that may follow when policies are not complied with.

What should an employer do if they suspect an employer is under the influence?

If you suspect an employee is under the influence of drugs or alcohol at work, we recommend utilising the following framework:

Trigger Generally, a complaint or concern will be raised, which will identify the alleged affected employee.
Observe

Immediately observe the behaviour of the employee and refer to your Company’s policies and procedures. For example, do you have a reasonable suspicion of drug or alcohol use? Is there a substantial safety risk?

Meet

Immediately meet with the employee once there is a reasonable suspicion of drug or alcohol use.  Ensure that you adhere to the Company’s policies and procedures.  For example, put your concern to the employee and ask for their response.  If necessary, proceed to implement drug and alcohol testing.

Test

Arrange a drug and alcohol test for the employee.  For example, to be conducted on-site or off-site, ensuring this is in accordance with the Company’s policies and procedures.  If the test is to be conducted off-site, ensure the employee does not drive themselves.

Actions / Next Steps

Action should be taken in accordance with applicable policies and procedures taking into consideration the circumstances.  This may include disciplinary action (such as a written warning or possible termination of employment), counselling, training, etc.

 Remember that employers have a duty of care to ensure the health and safety of all workers in the workplace.

 

When can an employer terminate an employee for using drugs or alcohol in the workplace?

 

Disciplinary action should be considered on a case-by-case basis taking into account the circumstances.

 

Failure to comply with a zero tolerance drug and alcohol policy may form a legitimate basis for the dismissal of an employee. For example, in Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35, the Federal Court upheld the dismissal of an employee who registered a positive result, which contravened the company’s zero-tolerance policy for drugs and alcohol.

 

Nevertheless, this must be reasonable in the circumstances. In high-risk jobs, where a lapse in judgement could result in serious injury or death to the employee, other employees or the general public, dismissal due to a failed test may be considered reasonable.

 

However, where alcohol is allowed or even endorsed in the workplace, dismissal may be considered harsh, unjust or unreasonable and may be grounds for an unfair dismissal. This was demonstrated in Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) 2013/148638, in which an employee was awarded $300,000 after his employment was terminated due to intoxication.  In this case, the court found the dismissal was harsh, given the employee’s low-level of intoxication, low-level risk of harm to others and the fact that alcohol was routinely consumed in the workplace and while interacting with clients.

 

Tips to ensure you are meeting your obligations regarding a workplace drug and alcohol policy:

  • Ensure the policy is clear and well-defined
  • Ensure employees are provided with a copy of the policy and are properly trained in the contents of the policy
  • Ensure the policy has clear testing procedures, which outlines what types of substances may be tested for
  • Ensure the policy outlines how results will determine if an employee is unfit for work and the consequences of a positive test
  • If the workplace does allow employees to consume alcohol, the policy should clearly state what behaviour is likely to constitute a breach of the policy
  • Provide education, resources and training for managers and workers

 

Contact the HR Business Assist team if you require assistance or guidance.  For example, if you require a policy, assistance with training or approaching an employee who you suspect to be under the influence of drugs or alcohol in the workplace

 

HR Business Assist | P 1300 138 551 | E info@hrbusinessassist.com.au

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