Workers told to think before they drink

An employer can legally terminate the services of an employee who drank two beers during his lunch break for violation of a “no alcohol” company policy.  Thus, it was the decision of the Australian Industrial Relations Commission in the case of Selak v. Woolworths [2007] AIRC 786 to validate a company’s “zero tolerance” policy on an employee’s alcoholic consumption during working hours wherever the employee may be.

The facts of the case are as follows:

1. Mr. Tony Selak has been an employee of Woolworth’s Safeway chain of stores for 18 years.  He worked his way up from trolley boy to the position of store manager.  Mr. Selak’s employment contract contained a provision stating “no alcohol is to be consumed by employees during working hours, including meal breaks”.  Furthermore, Selak’s employment contract stated that “if in the reasonable opinion of the company [the employee is] found to be in breach of Company Policy, involved or party to serious and willful misconduct … the Company may terminate [the employee’s] services immediately.”

2. On 2 May 2007, Mr. Selak and another Safeway employee spent their lunch break at the Sandbelt Hotel where Mr. Selak had two beers.  Upon returning to the store, Mr. Selak was informed that he was being suspended immediately, as he was observed drinking beer by a colleague.  Subsequently, Mr. Selak was terminated from employment for breach of his contract and company policy.

3. Mr. Selak filed an action against Safeway under Sec 643(1)(a) of the Workplace Relations Act of 1996, claiming that his dismissal was harsh, unjust or unreasonable.

4. Mr. Selak argued that:

a. He had no idea that the company’s “Intranet Drugs & Alcohol Policy”  was a strict one as he was not informed that it was such.

b. The same alcohol policy should not have been applied to him because he drank beer during lunch break, outside of the premises of Safeway, and was not operating heavy or dangerous equipment that day.

c. The penalty of termination from employment should have been tempered by his long service in the company and being his first offense, a warning should have been the more appropriate action.

The AIRC, speaking through its Commissioner Grainger, ruled that Mr. Selak’s employment contract contained in clear and unambiguous terms the policy against drinking during working hours and meal breaks.  Thus, the company had every right to terminate his services when he consumed alcohol during his lunch break.  The circumstance that Mr. Selak consumed only two beers was of no moment, as  Commissioner Grainger said:

“The fact that each only drank two beers does not avoid the fact that this was a breach of an express term of Mr Selak’s contract of employment, a term which constituted in its express wording a lawful direction to Mr Selak from the respondent … Mr Selak’s conduct in drinking alcohol with Mr T at the Sandbelt Hotel on 2 May 2007 to have been conduct that is so serious that it goes to the heart of his 2005 contract of employment with the respondent.”

The Commissioner also rejected Mr. Selak’s claims that he had no idea that the “zero tolerance” policy was a strict one and that Safeway should have considered his long employment history before applying the penalty of termination upon him.  The Commissioner maintained that it is precisely because of his senior position in the company that he should have been the first one to observe such a strict policy, as a superior who is immediately responsible for more than a hundred subordinates who are also obliged to observe the same policy.

Understandably, the decision of the AIRC in the Safeway case has raised a howl among critics of Woolworth’s strict zero tolerance policy.  While it is a known fact that many Australian workers like to enjoy a beer or two during the holiday season, they may have to examine their employment agreements and company policies first before grabbing that drink.