30 November 2015
What is your workplace Christmas drug & alcohol policy?
T’is the season of the office Christmas party – lots of fun with lots of risk!
We traditionally issue our bulletin on this topic every year because come January we take calls, quite a few, about how to respond to what I may have done but can’t remember doing, what really happened behind the punch bowl, and whether the directors could be liable for the accountant sexually harassing the IT trainee if the CEO saw it all through bleary eyes but was too drunk to stop it.
In this bulletin we look at the Christmas party, other festive behaviour affecting work and conclude by exploring the benefit of a comprehensive drug & alcohol policy.
What are the rules for the Christmas party?
Just to recap:
the locale of the office Christmas party is just as much the workplace as your office;
your staff are just as much at work as when they are answering calls and sending emails;
there is nothing so special about the office Christmas party which means the normal rules don’t apply - they do apply;
remind staff that they are still at work and to be on their usual good behaviour;
appoint a few guardian angels who will not be drinking and who are ready to step in or report if something goes awry;
choose your guardian angels from all levels of your organisation – seniors often have blind spots and are invariably excluded from where the fun is;
tell everybody the finish time before you start, and stick to it, turn on the lights and turn off the booze;
make sure everybody is sent off safely on their way home - if you have kept them out late and plied them with alcohol you have an extra special obligation to makes sure they get home safely; and
do not let the now well-lubricated Chairman wave the corporate credit and lead the crowd to ‘kick on’ at that new bar on the other side of town.
All of this is old territory and pretty obvious, or maybe not so obvious. Issuing the warning to Do the Right Thing and then expecting the venue to manage the responsible service of alcohol will not be enough if the staff have free access to the keg, and nobody in authority ever says “Stop!”. These were the circumstances in Keenan v Leighton Boral Amey Joint Venture  FWC 3156.
In that case the dismissed employee no doubt behaved badly as he became more and more inebriated with the free flow of alcohol. But the Fair Work Commission was sympathetic to his plight because nobody ever turned off the beer tap and all his colleagues were happy enough to pass him a drink whenever he put out his hand.
Let’s not get carried away, even in our own time
More recently in Ward v Kimberley Ports Authority  FWC 5449, an employee who worked as a welder was sacked after failing a random breath test when he presented to work in the morning with a 0.026 initial alcohol reading. The employer had a zero tolerance for breaches of its drug and alcohol policy. Whilst the employee claimed he felt fine, ‘feeling fine’ was not the test. The day earlier, he had confessed to having drunk twenty cans of beer during Australia Day festivities. Despite thirty years of service, the dismissal was not unfair. He was dismissed for a first breach of the policy
The Commissioner commented favourably on the employer’s policy:
“The …[p]olicy’s simple objective is to make the workplace safer, the policy is one way of achieving that objective. Mr Ward breached the policy in very disapproving circumstances.”
This decision is on appeal and will be one to watch, but shows the value of a policy designed to ensure safety and fitness for work.
What type of drug & alcohol policy?
There has been much discussion within the Fair Work Commission and broader industrial relations community as to what should be in a drug & alcohol policy and how it should operate. It is not as simple as saying - No drugs or alcohol in the workplace.
A few issues to consider:
Is your concern whether people are affected by drugs or alcohol in the workplace, or is it that you do not want people in the workplace who are the kind of people that use drugs or alcohol?
If you are worried about whether somebody is affected by drugs or alcohol in the workplace, how will you measure that?
Will you impose a ‘no alcohol’ limit? If you are allowed to drive when under 0.05, will that be your standard?
Will you test only those who appear to be affected by alcohol? Will the test be random, or will everybody be tested as they walk in the front door?
Will it ever be ok to drink at work? At a hosted lunch, at a farewell, or with a client?
Is it only illegal drugs that you are concerned about? Prescription drugs can adversely affect performance particularly when abused.
How will you test for drugs – bleary eyes, walk a straight line, breath test, saliva swab, hair sample or urine sample?
A person might have traces of an unlawful drug in their system on the Monday morning, but have the effects on performance passed?
Will you be reporting what you find to the police?
All of these issues need to be considered when you prepare your drug & alcohol policy. Recently (Toms v Harbour City Ferries Pty Ltd  FWC 2327, Harbour City Ferries Pty Ltd v Mr Christopher Toms  FWCFB 6249) the Commission discussed whether it was fair to have a policy that contained an outright ban on all alcohol or drugs, even when the presence of alcohol or drugs could have no impact on the performance of work. Much might depend on the nature of the business and the safety of others.
A policy can have a number of functions. Most important are the goals of improving performance and safety in the workplace. Your policy should represent the organisation that you are, and set the ground rules so that employees know when their job is at risk.
Business may be cautious about implementing a tough drug & alcohol policy but the benefits are worth it. Consultation should stress the importance of safety and make the expectations of your business crystal clear.
Once you have a policy it is important to follow it and apply its terms, or it will be worse than having no policy at all.
Best wishes for the Season and think of this bulletin after you have watched the sunrise on New Year’s Day and are getting ready for work in 2016.
Author: Mark Paul