October 2016

Last month, the Fair Work Commission upheld a decision to dismiss an employee for breaching its zero tolerance policy on illicit drugs, confirming the importance of having a clear drug and alcohol policy that is effectively communicated and consistently applied.

The employer, Coles Group Supply Chain Pty Ltd (Coles), summarily dismissed Shane Clayton who tested positive to cannabis, in breach of Coles’ drug and alcohol policy, which clearly stipulated cut-off levels of alcohol intake and a zero tolerance to illicit drugs for any person employed “at any Coles Distribution Centre in any position.”[1]

Whilst the fairness of a dismissal for breaching a zero tolerance policy is ultimately for the Commission to determine, taking into account the nature of the workplace, the risks associated with employees working under the influence of alcohol or illicit drugs and the absence of an appropriate objective test for impairment, the case confirms that an important consideration is the language of the policy.[2] In this case, Coles’ policy stated that it was directed to providing “a conclusive (positive/negative) result and not to establish[ing] the extent to which a person may be impaired from performing work tasks.”[3] It also clearly stated that a positive test for illicit drugs could result in dismissal.

An employer generally does not have any right to direct how an employee conducts themselves outside of their employment.  For an employee’s “out of hours conduct” to be a valid reason for dismissal, the conduct must have a relevant connection to the employment relationship.

In the recent decision of Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations / Warkworth Mining [2016] FWC 6018, Commissioner Saunders of the Fair Work Commission (FWC) has considered the factors which go to establishing a relevant connection between an employee’s out of hours conduct  and their employment, and whether such conduct was a valid reason for the employee’s dismissal.

On 28 September 2016 the Financial Conduct Authority (FCA) published final rules on regulatory references. The purpose of the rules is to support the FCA objectives of “consumer protection and market integrity by providing firms with effective tools to better assess individuals fitness and propriety and ensure individuals take greater responsibility for their own conduct.”…

On September 21, 2016, the Québec Superior Court issued a judgment (2016 QCCS 4521) concluding that truckers of the Sikh religion were not exempt from the obligation to wear a safety hat while completing certain work-related tasks out of their trucks on various Port of Montréal premises.

The plaintiffs were truckers from different private transportation…

In March 2016, we issued a legal update discussing Private Member’s Bill C-234. This Bill, tabled by the NDP, proposed the introduction in the Canada Labour Code of measures comparable to the anti-scab provisions contained in the Québec Labour Code.

This NDP proposition was undertaken to support longstanding unions’ demands – in the past,…