The Fair Work Commission has thrown out an unfair dismissal application by an employee who had failed a blood alcohol test, but claimed it was because of his David Beckham cologne and applying hand sanitiser. The recent decision of Barber v Veolia Recycling and Recovery Pty Ltd [2025] FWC 403 should provide some comfort to employers seeking to enforce a drug and alcohol policy in the workplace.
The garbage truck driver and union delegate had been employed by Veolia Recycling and Recovery Pty Ltd (and its predecessors) for over 10 years, being an elected health and safety representative (HSR) for much of that time.
The evening before a 4:15 am shift, the HSR attended a union function where (according to his evidence) he drank six beers before heading home and getting only 4.5 hours of sleep. The following morning, Mr Barber arrived early to work. He was met by drug and alcohol testers arranged by his employer. Mr Barber recorded a low-level positive result (0.013%) at 3.58 am, and a second confirmatory test (0.007% at 4.22 am) for alcohol in his system.
While under the state’s legal limit, the positive alcohol results breached Veolia’s zero-tolerance drug and alcohol policy. That policy required drivers not to operate heavy vehicles while fatigued or under the influence of drugs and alcohol. The driver was already in hot water following a series of warnings for refusing to follow various directions, two crashes caused by not following ‘basic’ safety rules while operating the truck, and speeding on a nearby public road.
Veolia stood down the driver before ultimately terminating his employment for ‘repeatedly showing disregard for Veolia’s lawful and reasonable requirements and breach of his obligations as an employee.’
In his unfair dismissal application, the driver submitted that his application of David Beckham cologne before heading to work, and his use of hand sanitiser once he arrived, could have resulted in two false positive results. While we are sure he smelled dashing, expert evidence in the case rubbished his theory, noting that any ethanol traces would have evaporated by the time the driver arrived at the depot.
Similarly, the hand sanitiser submission was rejected by the expert, who said that could only have occurred if there had been ‘deliberate adulteration’ of the test, such as putting an ‘alcowipe’ in the straw or the driver touching the straw or his face immediately after applying sanitiser. This was considered unlikely given there was no evidence of any interference with the breathalyser, and the tests had been conducted by an external accredited collector.
Lastly, the driver also submitted that, by his self-assessment, he was not impaired by alcohol. This was given little weight, with the Commission noting the driver exhibited a degree of recklessness by knowing how little sleep he would get and not seeking to disclose the evening’s circumstances in case his self-assessment was incorrect.
The Commissioner ultimately found that there was a valid reason to end Mr Barber’s employment, being the several incidents including the positive breath test, which involved conduct inconsistent with the business’s various policies and directions, combined with several previous incidents for which he had been warned. While some minor inconsistencies with the policy occurred, the process was procedurally fair and there was no unfair dismissal. The Commission also found the employee’s dismissal was not caused by his role as a union delegate or HSR.
While a single breach of a drug and alcohol policy may not be enough to dismiss an employee, it will depend on the facts of the specific case, including the wording of the policy, how the test is conducted, and the severity of the breach. Certainly, we have seen other cases recently where breach of a zero-tolerance policy has formed part of a valid reason for dismissal as a ‘final straw’ for a problem employee.
Last year, the Commission considered a similar issue in the matter of Mr Jake Candido v Scalzo Trading Co Pty Ltd [2024] FWC 2129. There, a forklift driver was summarily dismissed for deliberately avoiding a drug test by advising colleagues that he had soiled his pants, was unwell and needed to go home.
While the Commission begrudgingly accepted that the incident occurred, it found there was a valid reason for immediate dismissal, noting the forklift driver had previously failed a drug test, avoided all attempts to arrange for an alternate time to conduct the test, and the employer had strict work health and safety duties to meet.
These cases are a good reminder for employers, particularly in a safety critical space, to have robust policies that are well implemented. Combined with a procedurally fair process, they are an important part of ensuring a safe workplace and can form a legitimate reason for terminating one’s employment.
