For information on how an EAP can help your employees and business, see Employee Assistance Programs.
Not only do drugs and alcohol increase risk, but can contribute significantly to absenteeism, productivity and incidents, and potentially cost thousands of dollars in claims for the employer.
Have you heard about the Cannon versus Poultry Harvesting case?
Here’s a bit of background. Ms Cannon was employed by Poultry Harvesting and described her work as moving a large piece of machinery with an attached conveyor belt for the purpose of loading chickens onto trays. Once the chickens were loaded onto the trays, they would be put into trucks for delivery.
So what led to Ms Cannon being terminated and the ultimate unfair dismissal case?
It was night shift on Melbourne Cup Day and consuming “three or four glasses of wine” earlier in the day, Ms Cannon fell asleep on the job. With the job itself requiring two people to manage, and Ms Cannon sleeping, 50-60 chickens were consequently killed.
The boss was called in and found Ms Cannon passed out and smelling of alcohol. So what would you do? In this case the employer terminated her immediately, arguing her conduct created a serious health and safety risk. He also argued that there was a well-known company policy, which had a ‘zero-tolerance’ approach to drugs and alcohol in the workplace.
Unfortunately for the employer, the Fair Work Commission (FWC) disagreed and found the worker was dismissed unfairly and awarded the employee 6 weeks wages as compensation (nearly $7,000). This did not include the employer’s costs and stress of running the case.
Are you shaking your head yet? Are you asking, ‘how can someone turn up to work drunk, causing big financial burdens, and walk away with compensation’? The issue in this case is less about what the employee did, rather what he did NOT do.
Here’s where the employer went wrong…
The employer's policy documents were too general and unclear
Commissioner Wilson found no substantive evidence that workers were bound to a ‘zero tolerance’ policy. He said the employer’s documents contained ‘general knowledge’ about drug and alcohol restrictions but did not make it clear what was expected, and when.
“While the evidence supports a finding on the balance of probabilities that [the worker] was aware that consumption of alcohol at work was not permitted, or that presenting for work in an intoxicated state would not be permitted, I am not able to find that [she] had been warned or was aware that consuming alcohol to any level prior to presenting for work was not permissible”, Commissioner Wilson.
The employer failed to investigate or verify the worker had consumed alcohol
Commissioner Wilson also found the employer did not have sufficient knowledge about the worker’s condition to find she was intoxicated, and took no informed or objective assessment of her condition before sacking her. In addition, the worker had not been provided with an opportunity to respond to the allegations, or to have a support person present.
Lack of training
It was unclear whether the worker was aware of or given access to the Policy and training on it.
Inconsistent application of policy and procedure
The Commission found that the policy was aimed at correcting problematic behaviour (e.g. testing, counselling), however, this was not offered to the worker. Further, the employer contradicted its own decision by allowing Ms Cannon to continue to work her shift, despite finding her unfit for work.
Key learnings for employers from this case:
Read the full case.
The statistics on drugs and alcohol use in Australian workplaces are alarming – a staggering 25% of work accidents involve drugs or alcohol! It’s an important issue that needs to be managed, not only for the immediate health and safety of employees, but also to protect employers.
Take the Cannon versus Poultry Harvesting case study for example; an employee, who showed up drunk to her job at a chicken farm, fell asleep and approximately 50 chickens were killed as a result. Noticing her breath smelled of alcohol, she was reminded of the organisation’s ‘zero-tolerance’ policy and terminated immediately. The worker claimed ‘Unfair Dismissal’, to which the Fair Work Commission agreed, and was awarded nearly $7,000 in compensation.
How does that make you feel? Shocked? Unfortunately, the reality is that the employer’s Drug and Alcohol Policy didn’t measure up to standards and was not consistently applied.
So how do we make sure this doesn’t happen to us? How can we protect our employees and ourselves in these situations?
The reality is that many employers want to keep people safe at work, prevent dangerous and costly workplace accidents and maintain a good brand reputation. But, despite these intentions, many will fail because their policies and procedures aren’t thorough, or their execution isn’t adequate. Or even worse, their employees aren’t educated or aware of the policy.
So what are the most common pitfalls in drug and alcohol policies and procedures?
1. The half-baked approach
This is where a simple 1 – 2 paragraph policy exists, simply stating the attitude of the business towards the issue. Typically it states how the organisation ‘will not tolerate drugs or alcohol in the workplace’ or ‘has a zero tolerance approach to drugs and alcohol use’. That’s all there is, and it’s certainly not enough. The policy needs a detailed procedure to back it up, and a series of steps to be followed to reinforce the policy.
2. Unclear procedures
Ensure the procedure is thorough by detailing the who, what, where, when and how of the organisation’s drug and alcohol management program. It should state who is tested (e.g. employees, contractors), what drugs are being tested for (e.g. which drug classes), where (e.g. on-site, off-site), when (e.g. random, post-incident, for-cause) and how (e.g. urine vs saliva) and by whom. It should also detail what support is available to workers and disciplinary procedures.
3. The ‘catch and sack’ approach
This is where procedures are considered harsh, unjust or unfair such as immediate termination following one breach of the policy. The risk here is employers open themselves up to unfair dismissal claims. When considering unfair dismissal claims the FWC will look at the employer’s policy and procedures, whether it was followed and applied correctly, what process they went through to make their decision, any training and support offered to the worker and whether the decision was fair, just or harsh (amongst other things).
4. Inconsistency in the application of the procedure
Inconsistency in the procedure application and fairness are common problems in enforcing policies and procedures. Often an employer may miss a step, intentionally or otherwise, or manipulate the procedure to get the desired outcome; for example, deliberately targeting a person in a random test… which of course, is not random! Other times they may terminate a worker without following the procedural steps… again, not the correct procedure!
5. Lack of training
This one is really simple, but so often not done. Employers need to ensure that all workers are trained on the drug and alcohol policy and procedures – at induction and ongoing, and sign training attendance sheets. Employees should be educated on the dangers of alcohol and drugs in the workplace in all standard training, and made well aware of the organisation’s policies and procedures. Best practice is to include a competency test to show that the employee understood what they were taught.
It is understandable, despite their best intentions, how an organisation can fail to implement positive drug and alcohol policies. But it is a critical one to get right! Not only will having a clear, detailed, fair and enforceable procedure be more successful in eliminating drugs and alcohol in the workplace, but it will save your bottom line in the long run!
Responsibilities at work may not always be the sole cause for poor metal health, but for some people, workload and stress can be a significant contributor. In Australia employers have a duty of care to ensure that employees are safe at work, both physically and psychologically, and can confidently perform their job without any adverse affects. So what happens when you suspect an employee is struggling mentally, and how do you approach it? Here are some steps to follow:
1. Arrange a confidential meeting
Ensure that you arrange a confidential meeting, in an environment away from prying eyes where the person can feel comfortable. Be professional when scheduling so that you don’t further contribute to stress or anxiety.
2. Be familiar with your workplace mental health resources
Be well versed in any company policies around mental health and resources available such as Employee Assistance Programs. Have hand-outs printed and sealed in a folder for the employee to take with them.
3. Adopt an honest, upfront and caring approach
Start off by providing encouragement and pointing out the employees strengths and contributions that they bring to the business – it is important that they feel valued. Consider the conversation to be somewhat of a performance review where the positives are discussed first followed by concerns. Be clear in stating why you are concerned.
Be aware that your employee may not realise the impact their mental state is having on their work, feel as though their personal issues are not your concern, or alternatively they may think that everything is just fine. Be prepared to be dismissed. But if your employee is willing to open up, be supportive.
Consider asking open ended questions where the employee is able to steer the conversation in a direction they are comfortable. Ensure that you listen openly and provide encouragement. Don’t push for information which is outside of the scope of work related issues – it is not your business.
It is important that you focus on solutions, not problems, and how you can help the employee in a business sense – remember that you’re not in their shoes, even if you think you have been before. Ensure that you document everything being said and consider ways of temporarily altering their job role and responsibilities to reduce pressure and workload. Offer your collected mental health resources and details about what’s included in the pack.
5. Schedule a follow-up meeting
Don’t forget that you have a duty of care to ensure your employees are happy at work. Once the employee has had some time to digest the conversation, potentially seek help and you’ve altered their work responsibilities, check back in. If the employee’s mental state has not improved, or gotten worse, consider offering them the support of an Employee Assistance Program. Again consider their workload and responsibilities, and refer them to free phone and online resources, as well as community service providers such as doctors, psychologists and counsellors. And once again, after some time, repeat the process.
Talking to employees about mental health may seem a daunting process, but it’s the first step in taking positive strides to ensuring happy, healthy and efficient employees. And when you make mental health and wellbeing a priority in your workplace, your employees will thank you for it.
For further reading and free mental health resources, see:
Black Dog Institute: Workplace Mental Health Toolkit
Beyond Blue: Workplace Mental Health
Lifeline – Phone: 13 11 14
Beyond Blue – Phone: 1300 22 4636
Doctor provided ‘generic’ medical screens are common and relatively cheap. They usually include an assessment of hearing, eyesight, blood pressure, and a medical questionnaire, typically sourced from voluntary disclosure. But the issue with a ‘generic’ medical assessment is that they have the potential to miss important information, rule someone out unnecessarily, rule someone in who shouldn’t be, or open employers up to possible discrimination.
This is why ‘generic’ is dangerous and can actually be quite costly in the end. If a role does not require a specific function, let’s say overhead lifting, and you rule a good candidate out because they cannot lift their arm over their head, then not only have you missed out on a good candidate, but you may have exposed yourself to discrimination.
Likewise, what if you hired someone to do a physical role and they were carrying a back injury they did not disclose to the doctor, or 'played it down'. They then aggravate their injury at your workplace, put in a valid workers compensation claim and have to stop work. This would be a disastrous outcome for both you and the employee, who is now injured and unable to work.
So how does a good Fitness for Work Assessment differ?
A good F4W© considers the actual physical and cognitive demands of the role and directly assesses a candidate’s ability to perform those tasks safely.
A good F4W© will be based on a task analysis. This is not a job description – which outlines things such as responsibilities, accountabilities or employment conditions, but rather a detailed account of the movements (like bending, kneeling, lifting), frequency of these (e.g. once/day vs 20/day), and load/force (e.g. push 25kg at waist level) required for the role. For example, the physical work an office worker does is entirely different to that of a plant operator - does it make sense for them to do the same test?
A good F4W© will be conducted by a trained allied health professional, such as an Occupational Therapist, Physiotherapist or Exercise Physiologist with experience in preventing and managing workplace injuries. These professionals understand the impact of injuries on work tasks, are trained to detect muscle weakness, poor techniques, signs of fatigue and strain and identify at-risk persons. Their recommendation is based on evidence-based clinical judgement. They can also offer reasonable and practical suggestions to allow you to engage someone with only moderate risk, such as aids/equipment or manual handling training or job modification.
A good F4W© will protect against discrimination and invasion of privacy. Asking questions or assessing things not related to the role can expose an employer to discrimination if you rule that person out based on those answers. Knowing the right questions to ask is crucial. For example, asking whether someone has had a previous workers compensation claim is fraught with danger – and does it matter anyway? What is more important is whether they can perform the role safely. Likewise, too many personal questions without valid reason can be an invasion of someone’s privacy and simply not relevant.
And long-term, a good F4W© assessment provides a baseline for determining how employees are affected by the work they do in your business. For example, an employer can assess the validity of an employee claiming industrial deafness, when in fact, they had diminished hearing prior to commencing employment.
Evidence shows that employees who are not tested for fitness for work have:
By completing an appropriate F4W© assessments, businesses can help reduce accidents, provide a safer workplace, reduce absenteeism and decrease workers compensation premiums and claims costs.
So, whilst it may seem tempting to take the cheap option, employers should consider whether this really will give you the protection and outcome you need. Or will it cost you much more in the end if you get it wrong?
Find out more about Fitness for Work services available.
Absolutely we should!
As Leaders it is up to us to provide the foundation for a strong culture of safety for our employees. We should enforce a top-down approach, adopting a proactive leadership style and promote a positive attitude towards safety in the workplace.
So how do we achieve this? Here are 8 simple steps to get you started that will make an immediate difference to your safety culture:
So at this point, you’re either ready to start making some positive changes, or you’re waiting for the punch line. Well, here it is… remember that figure? $61.8 billion!
You can’t afford not to make some changes. Throw the rule-breaking approach out the window and refuse to contribute to the statistics! You might just be surprised too because there’s no doubt you’ll also profit from the additional benefits of a strong safety culture: happier employees, higher productivity, positive business relationships, less absenteeism and reduced claims costs.
"For a workplace drug & alcohol testing program to be successful it must be clear, detailed, fair, enforceable, consistent in its application and focus on education and support."
Many employers develop a drug and alcohol testing program with the right intentions - they want to keep people:
However, despite their good intentions, most will fail dismally!
We asked our team of workplace drug testing experts what they see as the top 5 common mistakes in drug & alcohol policies and procedures.
Here’s what they said:
For more information see Work Options "LightHouse Keeper - Navigating Safe Workplaces" Article