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September 2021

Cough lozenges and a failed alcohol breath test

Cough lozenges and a failed alcohol breath test

The Case

Rushton v Giacci Bro Pty Ltd (2021)

Giacci Bro Pty Ltd (Giacci) employed Mr Rushton as a truck driver. Mr Rushton was performing light duties due to a workplace accident. He was required to undergo a breath test before starting each shift. Despite this, Mr Rushton would take the breath test around 2 hours into his shift, after performing other duties. Mr Rushton received several warnings and was counselled for this conduct, and for failing two previous breath tests.

In December 2020, Mr Rushton again failed to take the breath test at the start of his shift and undertook it 2 hours into his shift. Mr Rushton recorded a reading of 0.013 and a second reading of 0.008 20 minutes later. Mr Rushton claimed this was due to him having 10 menthol cough lozenges and smoking a cigarette after the first test. However, Mr Rushton failed to produce the remaining lozenges when asked to do so.

Giacci claimed Mr Rushton had told his supervisor he had consumed four bourbons the night before. Mr Rushton denied this.

Mr Rushton was given an opportunity to respond to the positive breath test results and his failure to take the test before commencing his shift, and to explain why his employment should not be terminated. Mr Rushton claimed he had hygiene concerns over other employees using the test. Giacci terminated Mr Rushton’s employment. Mr Rushton commenced unfair dismissal proceedings.

The Verdict

The Fair Work Commission (FWC) held:

  • the dismissal was fair;
  • despite Giacci not picking Mr Rushton up each time he completed the breath test late, this did not mean Giacci was condoning Mr Rushton taking the test 2 hours late;
  • Mr Rushton knew the policy and refused to comply with it;
  • any hygiene issues could have been addressed if raised by Mr Rushton;
  • the positive readings were unlikely to be caused by menthol cough lozenges and smoking a cigarette, and were more likely to be caused by Mr Rushton’s excessive drinking the night before; and
  • Mr Rushton had been counselled and given sufficient warnings to make dismissal appropriate in the circumstances.

The Lessons

This case shows that employers can successfully enforce clear drug and alcohol policies where employees know what is required of them and the potential consequences of not following the policy.

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