FWC rejects lozenge claim after failed alcohol test
A worker who claims he failed a workplace breathalyser test because he had consumed medicated throat lozenges, and says he refused to undergo an earlier test because of COVID-19 concerns, has been denied an unfair dismissal remedy in the Fair Work Commission.
In Perth, FWC Deputy President Abbey Beaumont found the Giacci Bro Pty Ltd worker’s coronavirus claims were “flawed”, and accepted submissions from a supervisor and a manager that he admitted to drinking four bourbons – with “heavy handed” pouring – the night before the test.
The worker denied having conversations about drinking with either the supervisor or the manager, but the Deputy President found they were truthful witnesses.
The FWC heard the worker was a full-time truck driver whose role usually involved carting lithium ore to Bunbury Port in Western Australia, but he was performing light duties at the port, after sustaining a work-related injury, at the relevant time.
On 17 December last year, he arrived at work at 4am but failed to comply with the requirement to undergo a pre-shift blood alcohol content (BAC) test.
When he did so two hours later, he recorded a blood alcohol level of 0.013 per cent, and a blood alcohol reading of 0.008 per cent in a follow-up test.
During the disciplinary process, the worker claimed he failed the test because he had consumed seven or eight lozenges in a row to relieve his dry throat, and the result appeared to be a menthol reading, as opposed to an alcohol one.
He said he didn’t undergo the pre-shift test because he did not believe the hand-held breathalyser was hygienic to use in the COVID-19 pandemic.
After considering his disciplinary history, which included previous drug and alcohol breaches, his managers terminated his employment.
In seeking an unfair dismissal remedy, the worker told the FWC that in his 20 years with Giacci and associated companies, he could only recall one driver being dismissed for failing a breathalyser test.
But the FWC heard that what distinguished the worker’s circumstances from others was that he had received past warnings about BAC events. It dismissed his claim that he didn’t drink alcohol the night before the test.
Deputy President Beaumont also found he had never raised hygiene concerns about the breathalyser device with management, despite facilitating the use of the device on his colleagues in his light-duties role.
She heard that when COVID-19 concerns were raised by others earlier in the pandemic, the employer responded by providing individually wrapped breathalyser straws, eliminating any hygiene issues.
“The [worker] accepted that working within the transport industry necessitated the testing of BAC on each shift,” the Deputy President noted.
“Further, he did not cavil with the cut off level for the BAC being zero. The [worker] was a seasoned driver who was cognisant of the demands of the transport industry in this respect,” she said.
“It was also apparent from the evidence that the performance of light duties did not negate the requirement for the [worker] to self-test and ‘blow’ zero numbers.”
The Deputy President went on to reject the worker’s additional claim that his smoking of a cigarette just minutes before the second test invalidated it.
Rushton v Giacci Bro Pty Ltd [2021] FWC 3634 (23 June 2021)
Originally posted on OHS Alert
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