Zero Tolerance Workplace Policies

Many workplaces in Australia have zero tolerance workplace policies, especially in relation to breaches of alcohol and drug policies. Generally, this type of policy indicates that an employer is willing to take disciplinary action, up to and including termination, against workers for certain types of misconduct. This article looks at the nature of zero tolerance workplace policies and how they have been viewed in recent unfair dismissal cases before the Fair Work Commission.

The value and efficacy of zero tolerance policies has long been a topic of debate. There are clear benefits to this type of policy, as they can improve workplace health and safety, curb misbehaviour, discourage serious misconduct including workplace bullying and sexual harassment, and encourage productivity and cooperation. Because employees know they face consequences if they break a rule, they will be more motivated to avoid the punishment.

However, a zero tolerance policy also means there is no grey area for human mistakes, which tends to create a culture of fear and paranoia in the workforce. It can mean that employees are more focused on placing blame with others rather than finding solutions. When employees do not feel able to ask for assistance or admit to mistakes, this can negatively affect employee morale and workplace productivity. All these reasons should give employers pause when deciding whether to institute zero tolerance policies. Crucially, employers often confuse zero tolerance with grounds for immediate dismissal.

Before introducing zero tolerance in the workplace, employers should conduct a compliance audit to assess the rules and regulations that govern the workplace, and their enforceability. At this stage it is also instructive to consult with employees about the current state of regulations and the planned changes so that the workforce is comfortable and familiar with the new policy.

Discretion in zero tolerance

Sometimes policies that identify as zero tolerance reveal on closer examination that they do in fact allow for some tolerance. In fact, many companies include language in their zero-tolerance policies that allow managers to exercise discretion. It is important to know that managers who let small infractions slide without consequence under a zero tolerance policy defeat the purpose of the policy. More significantly, this type of inconsistent application of rules opens a company up to accusations of favouritism, bullying and discrimination.

Case studies

In Trevor Purves v Queensland Rail Transit Authority T/A Queensland Rail [2022], the Fair Work Commission handed down a decision about a Queensland Rail employee terminated for drinking half a bottle of whisky before work. The employer had a zero tolerance alcohol policy for rail workers because of the safety risk associated with the industry. After he was terminated, the employee made an unfair dismissal application on the basis that he had an unblemished 39-year record with the company, he had minimal technological and literacy skills and limited prospects of obtaining other work at 63 years of age. Additionally, the worker relied heavily on his salary as his wife was diagnosed with cancer and they would not be able to keep their home if he lost his job.

The worker reported that he was convinced that the alcohol he consumed would not show up on the BAC, as he had previously tested negative after similar behaviour. He claimed the testing instrument was faulty and company training for the device was inadequate. He also claimed that he did not breach the zero tolerance policy because he did not consume alcohol while on shift.

The FWC determined that the dismissal was for a genuine reason, but found that it was too harsh, given all the circumstances of the case. The FWC found that the employer should have given a more appropriate penalty. The FWC ordered that the employer reinstate the employee and pay half his lost salary.

This case is an important lesson for employers, in that is shows that even if an employee violates a zero tolerance policy, it is not necessary a reasonable cause for termination. Particularly when it comes to long term employees with unblemished records, having no tolerance for a single incident may be found to be too harsh.

By contrast, in Hancock v DP World Brisbane Pty Ltd [2022], the FWC upheld a dismissal of a long time employee who breached a zero tolerance alcohol and drug policy by testing positive to Tetrahydrocannabinol (THC). The worker was employed in clerical capacities by DP World Brisbane Pty Ltd for 25 years, performing duties such as coordinating the unloading of vessels and containers. In August 2021, Mr Hancock tested positive in a random workplace drug test.

The employer commenced disciplinary action for the breach of the workplace policy. Mr Hancock was aware of the policy, but claimed he was not impaired as he only smoked a small joint the night before and had taken the drug to combat serious mental health issues and facilitate sleep. The employer did not accept this justification and terminated him for serious misconduct. When Mr Hancock lodged an unfair dismissal application, he claimed that termination was disproportionate given the nature of his conduct. He particularly emphasised that the drug and alcohol policy did not clearly convey its zero tolerance mandate.

The employer gave evidence that it had bulletins posted in the workplace that emphasised the employer’s zero tolerance stance regarding drugs and alcohol. The FWC found that while the employee’s role was predominantly clerical, it could be safety critical, and the zero tolerance drug and alcohol policy was therefore reasonable. Ultimately, the FWC was satisfied that there was a valid reason for the dismissal and it was not unjustly harsh in the circumstances.

These cases show that while a breach of a zero tolerance policy is likely a valid reason for dismissal, employers should consider whether termination is harsh, unjust or unreasonable in the circumstances. For legal guidance on zero tolerance workplace policies or specific advice on employee misconduct, please call Go To Court Lawyers on 1300 636 846.