Can a person be summarily dismissed from their job due to drunkenness or drugs?

by The Findlaw Team

Australian employees enjoy a number of robust protections from unfair dismissal. However, there may be instances where the behaviour of the individual is so egregious, that the employer has no other choice but to summarily dismiss the employee. Criminal offences while at work can be viewed as sufficient grounds for summary dismissal, and being drunk or on drugs is another that comes to mind, and which of course, this piece will cover.

Dismissing an employee

When dismissing an employee for drunkenness or drug taking, the common law position in Australia is that the actions by the employee must have some impact on their ability to carry out their duties of employment, or that it must have had some impact on the business of the employer, per Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381 at [102]. Additionally in Meyrick v Stirling Bros Ltd [1892] 1 WALR 51, the acts of drunkenness subject to the case were seen as “...leading up to such a condition of the plaintiff that he was not able to perform his duty” and “...that a man who had for several months been constantly under the influence of liquor must necessarily have lessened his power of doing his duty.”

Safety

In addition to weighing up the potential of the employee to fulfil their duties, the common law has also noted that safety may be an issue as well, and that a drunk or drug affected employee may have an effect on the wider workplace health and safety. The broad principles that were articulated in Clouston & Co Ltd v Corry [1906] AC 122 at 129 were as follows:

“There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal. Certainly when the alleged misconduct consists of drunkenness there must be considerable difficulty in determining the extent or conditions of intoxication which will establish a justification for dismissal. The intoxication may be habitual and gross, and directly interfere with the business of the employer or with the ability of the servant to render due service.”



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