Costly hangover for Kimberley Ports welder

[Trevor 57]

Nothing unfair about dismissal over a 0.02 per cent alcohol reading, Fair Work Commission rules

The Fair Work Commission has upheld a Kimberley Ports decision to fire a welder who failed an at-work breath test

A Broome-based welder who was fired after recording a positive alcohol reading at work has had his unfair dismissal claim thrown out.

On January 27, Lee Ward was subject to a random breath test three hours into a morning shift with the Kimberley Ports Authority.

He recorded an initial reading 0.026 per cent; a second test 20 minutes later confirmed a blood alcohol content of at least 0.020 per cent.

He was asked to leave the premises immediately that day, and was formally dismissed at a meeting on February 3.

Fair Work Commissioner Danny Cloghan ruled that Ward had knowingly broken the Fitness for Work policy of his employer.

He says the welder understood the rules surrounding his role and that beginning work at 6.00am would invariably mean no alcohol the night before.

"At its core, Mr Ward’s dismissal concerns human behaviour," he says.

"It concerns his decision making and the consequences of those decisions."

Cloghan did not take into account the formal warnings that Ward had received for being absent from work without reason.

But he also did not offer weight to Ward’s submission that his breach of the Fit for Work policy was not wilful or deliberate, or that there had been no visible impairment as a result of his alcohol use.

"Mr Ward knew when he was drinking that he had to attend work the following day," Clogham says.

"Mr Ward knew that he could not attend work with a breath alcohol reading beyond zero.

"He was also aware that other employees had been recently dismissed for having breath alcohol readings beyond zero.

"I am satisfied that the employer had a sound, defensible and well-founded reason to dismiss Mr Ward."