Just what is an acceptable amount to drink at work? With spring in the air, we look at a couple of cautionary tales, and what you can do to manage alcohol and drugs at work.

It can be difficult for employers to negotiate the line between allowing staff to let their hair down in the office or at a work-related event, and enforcing a standard of acceptable conduct. Recent case law shows that it’s not just employees that may be hit with the negative consequences for drunk and disorderly conduct. Employer policies, practices and procedures are likely to be scrutinised if action is taken against an employee for being under the influence – and mistakes can be costly.

Good times at a conference

Imagine you send an employee to an interstate work conference. He drinks heavily the night before, charging his 17 drinks to the company credit card. He loses the key to his room and sleeps on a bench in the hotel corridor. The employee has to be roused from his snoring by the hotel manager. The next day, he turns up at the conference smelling of alcohol. He talks loudly, makes animal noises and throws a lolly before being sent home.

This scenario is based on a 2016 case where the disorderly conference-goer was sacked summarily, but ultimately walked away with a six month payout after taking the matter to Court. The NSW Supreme Court of Appeal found that although the employee committed “serious misconduct”, his employer was wrong to dismiss him without notice because his behaviour did not take place in “serious circumstances“, as required by the relevant company policy.

Festive fail

Picture your Christmas party. You see an employee drinking heavily, including serving himself a succession of beers from the esky in the corner. You hear the employee telling a director of your company to “—- off” and then later remarking to others around him that “All those board members and managers are ——, they can all get ——”. And “I hate working here, it’s a —- place to work’.

This is another real-life example of consuming irresponsibly. In this case, the employee who made such an impression at the Christmas party successfully challenged his dismissal. The Commission found that it was harsh, and disproportionate to the gravity of the conduct. Among other things, the Commission thought it was relevant that:

• The employer did not appear to have taken any steps to ensure the responsible service of alcohol during the Christmas function, other than entering into a venue hire agreement with the hotel in which the hotel agreed to take this responsibility upon itself.
•  No-one cautioned the employee over the amount of alcohol he was consuming and did not prevent him from serving himself a substantial number of beers.

A strict zero tolerance or low tolerance policy can help

Not all cases of employers taking a taking disciplinary action against an employee for “having too many” will end in tears. Recent decisions have shown a tendency to endorse strict zero-tolerance or low-tolerance drug and alcohol policies in high-risk workplaces, provided the policies set out clear expectations and obligations for employees and the consequences of non-compliance.  

In a 2015 case, a Sydney ferry driver’s dismissal was upheld after he collided with a wharf pylon and tested positive for cannabis, even though it was accepted that the driver may not have been impaired by drugs at the time he was involved in the accident. The fact that he might not have been impaired was not as important as the fact that there was cannabis detected in his system, which was in breach of the employer’s zero-tolerance approach to drugs and alcohol.

Tips to consider in relation to drugs and alcohol at work

Most employers are aware that well-drafted policies are the bedrock of a successful strategy for addressing drugs and alcohol at work. In addition to ensuring that employees acknowledge and understand your policies and procedures, you should also consider:

• providing regular, friendly reminders to staff about the standard of behaviour you expect them to live up to, especially in festive periods such as spring carnival and Christmas time;
• designating and training event marshals to observe and manage any unusual, inappropriate or unruly behaviour at work functions where alcohol is served;
• not simply leaving the responsible service of alcohol at work functions to the venue’s hosts (this is where event marshals come in);
• reviewing your drug and alcohol policy to check there are no unnecessary restrictions on the company’s discretion, should disciplinary action become necessary.

Aaron Goonrey is a Partner and Sara Wescott is a Lawyer in Lander & Rogers’ Workplace Relations & Safety practice.