The Fair Work Commission has given the nod of approval to the Kimberley Ports Authority after it sacked a former employee for turning up to work with alcohol in his system the day after Australia Day.
Lee Ward worked as a casual welder for Kimberley Ports Authority and, as part of his role, he was occasionally required to operate a forklift.
Operating a forklift requires a high-risk work licence and Ward was required to turn up to work with a zero blood alcohol reading.
The Fair Work Commission heard on January 27, Ward was subjected to a random alcohol breath test at around 8.30 in the morning, shortly after he had been operating a forklift.
The test showed a blood alcohol reading of 0.026%, with a subsequent reading showing similar results.
While Kimberley Ports Authority has alcohol self-testing facilities available onsite, Ward did not self-test on the day he was caught with the blood-alcohol reading of above zero.
Ward was sent home after the breath test and decided to drive himself, despite being offered a taxi by his employer.
A week later, the employer notified Ward he would be dismissed because he had breached the company’s workplace policies.
Ward took the matter to the Fair Work Commission, claiming his dismissal was unfair because he had made a “genuine mistake” and didn’t intend to turn up to work with a blood-alcohol reading above zero.
Ward told the commission the day before the incident he had family visiting from Perth and had consumed 20 cans of full-strength beer over a 12-hour period.
Ward said he went to bed at 10.30pm that night and woke up at 3am feeling fine.
However Commissioner Danny Cloghan pointed out just because Ward felt fine doesn’t mean he was fit to work.
“To accept feelings, of itself, as a proof of a matter, invites, in my view, a real concern,” Cloghan said.
“Such feelings are possibly self-serving evidence and a reconstruction of events, rather than a recollection. If Mr Ward’s evidence was put to the ‘front bar’ that after 20 cans of full strength beer, and 4.5 hours of sleep, he felt fine – it would be greeted with that very Australian saying relating to animal manure.”
As a result, Ward’s unfair dismissal application was dismissed and Cloghan ruled in favour of Kimberley Ports Authority.
Workplace relations expert and partner at Swaab Attorneys, Warwick Ryan, told SmartCompany Kimberley Ports Authority has followed an “orthodox disciplinary process”.
“Firstly, they had a policy in place which had been explained and was explicitly agreed to by the staff member and presumably all staff members,” Ryan says.
“That’s just critical. The second thing they had in place was they had an option for the staff to test themselves before they started. The other thing they did well was had in place processes to help staff access help if they needed it.”
Ryan says Kimberley Ports’ drug-testing policy is important because forklift drivers work in an inherently dangerous workplace.
“Forklifts are such a common source of accidents in workplaces,” he says.
“They actually perform dangerous work. He [Ward] didn’t dispute any knowledge of the policies and didn’t take any common sense steps to assess whether or not whether he was breach of the policies before commencing work.”
SmartCompany contacted Kimberley Ports Authority but did not receive a response prior to publication.
SmartCompany was unable to contact Ward for comment.
You can help us (and help yourself)
Small and medium businesses and startups have never needed credible, independent journalism and information more than now.
That’s our job at SmartCompany: to keep you informed with the news, interviews and analysis you need to manage your way through this unprecedented crisis.
Now, there’s a way you can help us keep doing this: by becoming a SmartCompany supporter.
Even a small contribution will help us to keep doing the journalism that keeps Australia’s entrepreneurs informed.