WRITTEN BY John Wilson & Kieran Pender
Many of us are partial to a glass of wine or a cold beer in the evening or over a weekend. Some of us might partake in drug use from time to time; there has been a push in other countries for the legalisation of marijuana consumption, for example, although it remains illegal in most of Australia (it has been decriminalised but not legalised in the ACT).
How do these habits intersect with obligations of public servants?
That may seem like a superficial question. We might think the answer is obvious: what you do in your own time is your business, whereas drinking on the job is ill-advised – except, perhaps, at work social events (and even then, within limits).
But as a recent case in Queensland shows, the reality is more complex.
Drinking and drug use in your own time can still be contrary to the Code of Conduct. Equally, zero-tolerance approaches may not be the answer either. As with most things, proportionality and common sense are helpful touchstones.
The starting point of the APS Code of Conduct, in the Public Service Act 1999 Section 13(2) provides that an APS employee must act with “care and diligence” in connection with their work.
A public servant who consumes an excessive amount of alcohol on a Sunday night may well still be under the influence on Monday morning – if there was subsequently an accident at work, questions of appropriate care and diligence could arise.
Section 13(10) is more expansive still – “an APS employee must at all times behave in a way that upholds” the APS values and “the integrity and good reputation” of their agency and the APS. Among the APS values is a commitment to be ethical and act with integrity. If a public servant was to consume illicit drugs and be arrested, even if occurring out of hours, the onerous “at all times” requirement might make it a breach of the Code.
Hence the Australian Public Service Commission summarises, in its APS Values and Code of Conduct in Practice document, that “if an APS employee misuses alcohol or other drugs before, during or after working hours they may be in breach of the Code”. Many agencies have specific policies and guidelines around alcohol and drug-use. Some, particularly frontline agencies, even require regular or randomised testing.
Accordingly, federal public servants would be well-advised to act prudently around drug and alcohol use that might have any nexus with their employment. This is particularly the case given the well-documented link between alcohol consumption and workplace sexual harassment, In light of the new positive duty on employers to address sexual harassment, it might be expected agencies will look dimly on anyone intoxicated in the office.
However, a strict, zero-tolerance approach comes with its own risks. A recent Fair Work Commission decision, Purves v Queensland Rail, provides a helpful illustration of the need for agencies to act proportionately in their treatment of public servants.
Mr Purves was a trackworker for Queensland Rail, and had worked there for almost four decades. In March last year, he returned positive results during a random alcohol and drug test as he was beginning work, recording blood alcohol concentrations of 0.037 and 0.025 – below the legal limit for driving, but above Queensland Rail’s zero tolerance policy. He was subsequently dismissed for misconduct.
In unfair dismissal proceedings, Purves contended that after finishing his shift at 3pm, he walked home and consumed his “routine” amount of alcohol in the early evening – about half a bottle of Scotch – with Coca Cola and a light dinner. He subsequently went to bed, waking at 5am to attend work. Mr Purves submitted he had been tested numerous times previously following similar drinking behaviour and so “had no concerns” about being tested. Only this time he tested positive.
Queensland Rail defended the case on the basis it had a strict policy, which was reasonable given the safety risks associated with the role. It contended that as Purves had breached the policy, Queensland Rail had a valid reason for dismissing him – as simple as that.
Commissioner Simpson accepted this: Purves’ “breach of the Policy was a matter of sufficient gravity to constitute a sound, defensible, well-founded and therefore valid reason for dismissal”. However, the Commissioner nonetheless proceeded to find the dismissal was harsh, and ordered Purves be reinstated.
The Commissioner reached this conclusion taking into account Purves’ honest belief that he would test zero given his prior practice, his family and professional circumstances (which indicated limited other job opportunities), his otherwise unblemished work record, that his test result was below the legal limit (albeit above the policy limit), and other sanctions were available to Queensland Rail.
“The circumstances taken together result in a conclusion that the dismissal was disproportionate to the gravity of the misconduct in the circumstances of this case,” Simpson held. He rejected the submission that the policy and related legal framework required the employee’s dismissal: “It is open to the Respondent to determine an appropriate disciplinary response subject to the particular facts in each case.”
Accordingly, Simpson ordered reinstatement.
Purves is an interesting and instructive case. Notwithstanding Queensland Rail’s (understandable) zero-tolerance policy and the acute safety context, the Fair Work Commission still held that dismissal for breaching the policy was harsh and unfair. It is a salient reminder for all decision-makers that proportionality and close consideration of the individual facts of the case is always essential. Reliance on “zero tolerance” is not the trump card that some might expect.
Of course none of that is to encourage alcohol or drug consumption if it is likely to have an impact on the job. Employees, and particularly public servants, would be well-advised to be better safe than sorry. But the legal situation is more nuanced that it might seem at first glance.
The above article was written for and published in the Canberra Times.
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