In Gane v Rail Corporation NSW an employees termination for failing a breath test was upheld by FWA.
The employee had a blood alcohol level of .029 when he was tested. The employee argued the employer failed to follow the correct procedure in testing him 20 minutes apart and failed to have the police test the employee as well. The employee further argued that he had six beers the previous night and woke up unwell so had cough medicine and rinsed his mouth with mouthwash.
Evidence was presented that the breathalyser was accurate, in fact, if anything, its readings were conservative. Further evidence suggested the six beers would have been out of his system and the cough syrup and mouthwash would not have been detected by the second test.
Commissioner Harrison found that while the employer failed to follow its procedure in administering the alcohol test, the employer had a zero tolerance policy which required strict adherence in the interests of safety and public confidence given the employee’s position as a train guard. In the circumstances it was reasonable to terminate in the interests of safety.
It is important when dealing with such matters that employers follow their operating procedures when performing alcohol and drug tests on employees. In most occupations, while there is a duty to provide a safe workplace to all employees, the public safety element in the above case would not be apparent. A failure to follow procedures may result in any ensuing dismissal to be considered unfair.