Posted 3 years ago
...and minimising that risk
A recent decision of the Full Bench of the Fair Work Commission in Gregory v Qantas upheld Qantas' decision to dismiss a pilot for serious misconduct, despite his "spiked drink" defence. This Full Bench decision was made two years after Qantas’ original decision to dismiss the pilot for sexually harassing a colleague. What followed Qantas' original decision included:
- an unfair dismissal hearing before the Fair Work Commission
- an appeal to the Full Bench of the Commission
- an employee appeal to the Federal Court, ending (finally) with
- the most recent decision by the Full Bench.
On 7 May 2014, a Qantas pilot's employment was terminated because he had engaged in sexual harassment towards a female employee during a layover overseas. The pilot was drunk and had groped his colleague’s breast in a taxi. A drug test taken by the pilot the day after the incident was positive, above the cut-off level tested for cannabis.
Importantly, Qantas, in making its decision to dismiss the pilot from his employment, took into account that the incident was a ‘one–off’ and that the pilot had been employed for a number of years. However, ultimately, these mitigating factors were outweighed by the fact that Qantas needed to have confidence in the pilot’s decision-making capabilities and the events of 7 May 2014 did not provide Qantas with that comfort.
Following his dismissal, the pilot did not accept accountability for his conduct, but argued his dismissal was unfair on the basis that firstly, his drink had been spiked and secondly, someone must have put cannabis in his food. He argued, on this basis, that he was not responsible for his level of intoxication on the night and for that reason, not responsible for the sexual harassment. The medical evidence did not support his argument – although this point was the subject of the various Commission and Court hearings.
What does the ‘spiked drink’ or ‘someone gave me a pill’ defence look like?
In a number of other unfair dismissal cases, various similar defences have been raised by employees in response to testing positive for alcohol or drugs in the workplace:
- “I took a capsule at a party but I didn’t know what was in it” – an employee’s response to his failure to declare having taken methyl amphetamine and subsequent resultant positive drug test (Drayton v Vaughan)
- “I did attend a party in Bali before returning to work [some 4 days later] and ‘something’ might have happened at the party which resulted in the positive test…but I didn’t consciously take drugs” (Sullivan v North West Crewing)
- “I know what I’ve done is silly but I haven’t been out very much lately with my friends…they held me down and put something in my mouth to allow me to stay up” (Donovan v AustCold Refrigeration)
- The employee had been drinking excessive quantities of alcohol at a hotel and she had engaged socially with two men that she did not know and was unable to subsequently identify. The employee believed she may have had her drink “spiked” by one or both of these unknown men and that was when she unwittingly had methyl amphetamine introduced into her body (Cunningham v Downer EDI Mining)
- One employee even went to extreme lengths to argue during an unfair dismissal application he made to the Fair Work Commission that the medical evidence actually showed a negative result for drugs in his system, even though the Company’s medical evidence was that the employee had tested positive for methyl amphetamine. The employee actually altered the drug test results to show a negative result. His approach led to the Company being awarded indemnity costs for the employee’s conduct during the unfair dismissal hearing (Green v Toll Holdings)
- “the [positive] drug reading could only have been the result of passive smoking whilst I was among my acquaintances” (Langman v Kooregah Pastoral)
With the exception of the last case referred to above (Langman), all of the employees relying on the "spiked drink" defence were unable to demonstrate their employment had been unfairly dismissed.
In Langman, whilst the Commission determined that there had been a valid reason for termination, the Commission determined that the Company had acted unreasonably because it did not comply with its policy (allowing an employee to be stood down to provide time for the employee to demonstrate they were drug free). However, the Commission decided not to reinstate the employee and instead he was awarded 2 weeks' compensation.
What proactive steps can a Company take to minimise the risk of a "spiked drink" defence?
There are some proactive steps that you can take point to mitigate the risk of going through a lengthy process like what occurred in Gregory v Qantas:
- Ensure compliance with Company policies and procedure (For example, if the Company has a specific Drugs and Alcohol Policy, ensure the policy does not require that the employee was under the influence of drugs or alcohol such that the employee was impaired, but rather that the employee tested positive above the cut-off level for drug and alcohol testing as set out in the Australian Standards).
- Take steps to validate or disprove the employee's "spiked drink" defence, this might include:
- obtaining scientific evidence regarding the level of drugs / alcohol in system v timing alleged spiking was said to have occurred and assessing whether the employee's argument is plausible;
- requesting further evidence from the employee to support their argument that their drink had been spiked and assessing that evidence with all of the evidence available (eg is it consistent with other evidence).