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MST assists client to win unfair dismissal appeal

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By Brenton Allen, Lawyer, MST Lawyers

MST Lawyers recently acted for an employer in a Fair Work Commission (“FWC”) ¬†unfair dismissal case involving the summary dismissal of an employee who breached its employer’s ‘zero tolerance’ drug and alcohol policy.

Following a random blood test administered by the employer’s OHS consultants in or around April 2015, the employee in question had registered consecutive BAC readings of 0.013 and 0.006.

The company relied upon a ‘first and final warning’ previously given to the employee for failing to lock out a faulty piece of equipment when dismissing the employee for breaching its zero tolerance policy for drugs and alcohol.

At a hearing at the FWC on 29 September 2015, Commissioner Bissett held that whilst the employee in question demonstrated a ‘dismissive attitude’ to his employer’s OHS policy, the ‘first and final’ warning previously given to the employee was ill-proportionate to the employee’s conduct and, as a consequence, could not be relied upon to justify his summary dismissal.

With the assistance of MST Lawyers, the client appealed the earlier decision of Commissioner Bissett. The result of the appeal was that¬† a Full Bench of the FWC overturned the decision on 4 February 2016. The Full Bench held that the decision, if not reviewed, would ‘manifest an injustice in relation to the treatment of safety at the workplace’ and that in the context of the employee’s poor safety record, there was a valid reason for the dismissal.

The case serves as an important reminder of the legal avenues that remain open to litigants following an FWC decision by a single commission member.

For further information regarding the decision, or on the operation of unfair dismissal laws, please contact our Employment Law and Workplace Safety team by email at workplace@mst.com.au or by telephone +613 8540 0200.

Metro Quarry Group Pty Ltd v John Ingham [2016] FWCFB 47