An alcohol-related incident can require an immediate safety response. It does not follow that a test result alone answers every question about misconduct or the appropriate sanction. Employers need to establish what their rule prohibits, whether the evidence proves that breach and how the employee’s explanation affects the decision.
Hugh Raichlin Attorneys assists employers with disciplinary preparation, workplace policies and labour disputes, and considers suitable executive-level employee matters. A well-prepared file is more useful than assuming that “zero tolerance” makes the outcome automatic.
Separate safety precautions from the disciplinary finding
Where a person may be unfit for a safety-sensitive task, address the immediate risk through an appropriate lawful process. Record what was observed and the action taken. That precaution does not replace the later assessment of the alleged misconduct.
Distinguish consumption at work, reporting for duty under the influence, a prohibited test result and a breach of a disclosure or safety requirement. The charge and the evidence should concern the actual rule. Changing the allegation after an explanation emerges can undermine clarity and fairness.
Examine the test and surrounding evidence
Check the testing procedure, time, operator, instrument records and any confirmation or repeat test. Record observations relevant to the employee’s ability to perform the actual work. Different roles may involve different risks; a generic description of the employer as a dangerous workplace is not a substitute for identifying the task.
The source article discussed an employee who attributed a positive result to cough medication. The dismissal was not upheld through the proceedings described. That outcome is not a universal “cough mixture defence”. It illustrates the importance of examining the explanation and the evidence rather than treating the result as self-explanatory.
Assess a medication explanation fairly
Ask what was taken, when, in what quantity and what information accompanied it. Consider whether appropriately limited medical or other evidence is needed. Give the employee a genuine opportunity to explain inconsistencies rather than assuming either dishonesty or innocence from the outset.
Medical information is sensitive. Collect what is relevant to the fitness or disciplinary question and restrict its circulation. Avoid requiring an employee to disclose unrelated diagnoses to a broad management group.
Prepare the hearing record
- The applicable policy, rule and proof it was communicated.
- The employee’s role and the specific safety risk relied upon.
- Testing records and contemporaneous observations.
- The employee’s explanation and relevant supporting information.
- Training, warnings and comparable treatment where relevant.
- The notice, opportunity to respond and reasons for the eventual decision.
Keep the investigation and decision-making roles clear. A fair hearing is not improved by copying a standard charge that does not match the evidence or by drafting the outcome before considering the response.
Decide sanction in context
The seriousness of a proven breach, risk, consistency, circumstances and applicable employment law all require attention. A policy may be important without binding an arbitrator to accept an automatic dismissal in every case.
Where dependency, illness or incapacity is genuinely raised, obtain advice about whether a different or additional process is appropriate. Do not assume that every alcohol issue is misconduct, or that referring to medication prevents any disciplinary action.
Questions employers ask
Can we rely entirely on the phrase “zero tolerance”?
No. The rule and its application must still withstand scrutiny. Explain the workplace purpose and why the evidence supports the particular finding and sanction.
Must we accept any medication explanation?
No. It should be tested fairly against the available evidence. Rejecting it without investigation and accepting it without scrutiny are both poor substitutes for assessment.
What should we do before issuing charges?
Preserve the test and incident records, identify the rule and obtain advice about a fair process. HRA can assist with the policy, hearing preparation and representation where permitted in any ensuing dispute.
Related legal assistance
General information, not legal advice on a particular matter. The documents, facts and applicable law determine the appropriate next step.