In Nick Kolodjashnij v Lion Nathan T/A Boag and Son Brewing Pty Ltd an employee’s employment was terminated as he had been caught drink driving after work hours.
The employee had a blood alcohol content of 0.154 when he was charged with drink driving on a Friday night. On his return to work the following Monday he advised his supervisor of the incident and the following day he was stood down on full pay and dismissed three days later.
The employer had a Responsible Drinking Policy, the promulgation of which was “central to promoting and encouraging responsible drinking within our organisation”. The policy included the following relevant statements: “Any incidence of a person being found to have been driving whilst above the legal blood alcohol limit, whether on company business or not, will be considered to be a serious breach of this policy. Anyone who breaches any aspect of this policy will be subject to appropriate disciplinary action which may include dismissal.”
Commissioner Deegan ruled that the employer’s Responsible Drinking Policy “was lawful, reasonable and formulated so as to protect the respondent’s legitimate business interests.” Since the employee was aware of the policy and aware of the consequences for breaching the policy, there was a valid reason for the termination of the employee’s employment. The employer had also afforded the employee procedural fairness and as such the termination was not harsh, unjust or unreasonable.
This is a substantial move away from the established laws surrounding non-work related activity. The critical part of this decision is the focus on values driven policy controlling behaviour in and out of work. If the policy is tight and values proposition sound – you can control aberrant employee behaviour outside work hours.