Can an employer fire someone if they suspect that the employee is intoxicated at work?

Question Details: My partner was fired from his job, as his employer believed that he was intoxicated. Although we had been drinking the night before, my partner was not intoxicated when he arrived at work. Is the employer allowed to do this?

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Community Law Wellington & Hutt Valley

No, an employer cannot dismiss an employee just because the employer suspects that the employee is drunk or intoxicated. The employer would need to have good enough evidence or proof to reasonably decide that, more likely than not, your partner was drunk, intoxicated or at least affected by drink. And the employer would then have to follow a fair process in collecting the evidence, giving your partner a fair chance to put his side of things, and then deciding whether your partner's conduct was serious enough to justify dismissing him.

Every case depends on the facts of the situation. If, for example, your partner's employer thought your partner smelled of drink, decided he must be drunk, then sacked him straightaway without even asking if he had been drinking, then the dismissal would almost certainly be unjustified because the employer did not follow a fair or proper procedure. That might not get your partner his job back, for instance if it turned out your partner was still affected by alcohol at the time he was sacked. But your partner would have a good case to go to an employment mediation or to the Employment Relations Authority, to try to get some compensation.

On the other hand if your partner was still affected by alcohol, even if not actually intoxicated, after a "big night" the night before, and his employer noticed this, asked him about it carefully, and checked to see if he was safe to be at work (depending what his job is), then the employer may be able to collect enough evidence (from other witnesses, checking how your partner was behaving, evidence of lack of co-ordination, etc) to decide to dismiss.

It's most likely that, if the employer did think there was good evidence that your partner was affected by drink, that the employer would need to send your partner away to sober up, then make a time, possibly the next day, to interview your partner, and hear his side of things. The employer has to listen, fairly explain the concerns to your partner, and get your partners' comments. The employer can't just make up their mind in advance, because that would be unfair. The employer must consider whatever your partner tells the employer, either to show he wan't drunk, or why he thinks he should not be dismissed. (To explain why he should not be dismissed your partner could mention things like that it has never happened before, that others have come in worse and been left alone to sober up, or he just had a hangover, but was able to do his job, the smell of drink was just left over from last night, or whatever else is true in his case.)

Many employers have disciplinary policies or rules, including specific policies about drinking. The employer will have to stick to any process that the employer's policy says will be followed, otherwise they probably will not be acting fairly. But the policy may also specify that reporting for work affected by drink (even if not "drunk") is "serious misconduct" and will be investigated and treated seriously if proven, and it might result in dismissal.

An employer's policy might also specify that the employer can breathalyse (or drug-test) an employee who shows signs of being drunk or affected by drugs - or even allow random testing if employees work in an area that is highly safety-sensitive. These requirements would need to be in a written policy, available to all employees, so they know what to expect. An employee can refuse to give their consent to being breathalysed or tested - but an employer could be entitled to draw conclusions if someone refuses to consent, without a good reason.

Seeing your partner has been fired, he may be considering whether he wants to take a personal grievance case for unjustified dismissal against his employer. There is more information about personal grievances at: www.communitylaw.org.nz. Remember, there are strict time limits for taking a grievance. Your partner would need to tell his employer no more than 90 days after the sacking (in writing is best) that he is bringing a claim for unfair dismissal.

Answered 18 Nov 2013. The IMPORTANT NOTICE below is part of this answer.

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