Whether the dismissal of a heavy vehicle driver for repeated safety breaches and a low-level alcohol test result under a zero-tolerance policy is legally justified?

Heavy Vehicle Zero-BAC Workplace Rule Dispute: When a Low Alcohol Reading and a Pattern of Safety Breaches Make a Dismissal Fair under the Fair Work Act 2009?

Based on the authentic Australian judicial case [2025] FWC 403, U2024/9197, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing:

Fair Work Commission

Presiding Judge:

Commissioner McKinnon

Cause of Action:

Unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth)

Judgment Date:

12 February 2025

Core Keywords:

Keyword 1: Authentic Judgment Case
Keyword 2: Unfair dismissal
Keyword 3: Safety-critical heavy vehicle work
Keyword 4: Zero alcohol workplace policy
Keyword 5: Procedural fairness
Keyword 6: Comparative employee treatment

Background

The Applicant was a long-serving heavy vehicle driver in municipal waste operations. The Respondent operated a depot where heavy vehicles moved through public-access areas at early morning hours, with heightened risk to workers and the public. The employment relationship carried a clear safety theme: the Applicant’s role required strict compliance with safety rules, driving procedures, and workplace drug and alcohol standards.

Over a period of months, the Respondent documented multiple incidents involving the Applicant. Some were driving incidents with property damage; others involved alleged non-compliance with depot driving rules and behavioural issues during a disciplinary stand-down. The final trigger was a workplace breath test showing a detectable blood alcohol concentration shortly before an early shift driving heavy vehicles.

The case was not simply about whether the Applicant had broken a road traffic law. The central question was whether, in the industrial context and having regard to cumulative conduct and safety-critical expectations, the Respondent had a valid reason to dismiss and followed a fair process.

Core Disputes and Claims

The Applicant sought an unfair dismissal remedy, contending the dismissal was harsh, unjust, or unreasonable. The Applicant’s case, in substance, was that:

the alcohol reading was low and not unlawful for ordinary road users in the relevant jurisdiction;
the testing process or surrounding circumstances raised doubt about reliability or fairness;
the Respondent treated the Applicant more severely than other workers who had returned positive alcohol readings; and
the Applicant’s union and health and safety role formed part of the context, suggesting he was being targeted.

The Respondent contended the dismissal was fair because:

the Applicant repeatedly breached safety rules and reasonable directions across a period of months;
the Applicant’s conduct, taken as a whole, showed an ongoing disregard for safety-critical obligations;
the workplace had a zero tolerance standard for alcohol for heavy vehicle operations and the Applicant returned two positive readings; and
the Respondent provided warnings and opportunities to respond, including a show cause process, and allowed a support person.

Chapter 2: Origin of the Case

The Applicant’s working life in the depot environment involved early starts, time pressure, interaction with other road users, and operating heavy vehicles with side-loading mechanisms. In that setting, the Respondent’s operational model depended on predictability: predictable adherence to speed limits near the depot, predictable use of the correct driving position, predictable compliance with rules for mirrors, cameras, and checks before moving, and predictable fitness for duty.

Over time, friction emerged between what the Respondent insisted were non-negotiable safety rules and what the Applicant saw as practical workarounds. The conflict escalated in stages.

First, there were driving incidents that caused damage. Those events were treated as serious because they were framed as avoidable through basic heavy vehicle caution: slow cornering, safe observation before moving, and checking whether mechanical systems had safely retracted.

Second, the Respondent took issue with depot-specific practices: driving from a non-standard position when not engaged in kerbside collection, and exceeding an internal speed limit on a public access road used as the depot entry. The Applicant’s stance was that the practice was common and sometimes safer; the Respondent’s stance was that safety rules exist precisely to prevent normalising risky shortcuts.

Third, a disciplinary stand-down event became volatile. The Respondent’s narrative was that the Applicant escalated the incident by refusing directions, challenging confidentiality, attempting mass copying of a confidential document, and delaying operations when drivers did not commence work. In workplace discipline, conduct during the process matters. A stand-down meeting is not merely administrative; it is often treated as a test of whether an employee can comply with lawful directions and participate in corrective processes.

Finally, the dispute reached its decisive point: a scheduled workplace drug and alcohol testing session where the Applicant produced two positive readings. The timing was critical: it occurred shortly before an early morning heavy vehicle shift. The Applicant did not deny the numeric readings at the time, but later contested reliability and suggested alternative explanations such as cologne or sanitiser.

By this stage, the Respondent was no longer asking whether one incident could be coached away. It was asking whether the relationship had become structurally unsafe: a safety-critical role, repeated breaches, and a final event suggesting the Applicant presented for duty with alcohol in his system, in breach of a strict workplace standard.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

Workplace alcohol reading was low and not unlawful for ordinary driving in the jurisdiction at that level, and the Applicant did not feel impaired.
The breath test results might have been affected by external factors such as cologne applied at home or hand sanitiser used after arriving at the depot.
The Respondent did not apply its own drug and alcohol procedures consistently, including what duties were performed after the second positive reading and whether transport home was offered.
Some driving practices, such as operating from the kerbside position while transiting, were said to be common practice, and the Applicant characterised them as safer or more efficient.
Comparative fairness: other employees with positive alcohol tests were not dismissed, and the Applicant suggested he was treated more harshly.
Industrial context: the Applicant’s union delegate and health and safety representative activities formed part of the background, and the Applicant contended this context mattered to motive and fairness.

Respondent’s Main Evidence and Arguments

Documentary history of multiple safety incidents, including collisions, unsafe driving practices, and non-compliance with depot speed limits and vehicle operation rules.
Prior warnings: the Respondent issued escalating warnings and required training and compliance measures.
Stand-down incident: evidence from managers and contemporaneous notes describing refusal to follow confidentiality directions, threats to management, refusal to leave site, and disruption to operations.
Alcohol testing: external accredited testing provider, calibrated device, compliance with Australian Standards relevant to workplace testing, and two positive readings with a confirmatory test.
Policy framework: employment contract conditions, code of conduct, life-saving rules, driver manuals, and drug and alcohol procedures requiring a zero reading.
Cumulative assessment: even if no single breach alone warranted dismissal, the series of incidents showed ongoing disregard for safety and directions.

Core Dispute Points

Valid reason: whether the Applicant’s conduct and capacity issues, assessed cumulatively, provided a sound, defensible, and well-founded reason for dismissal, as required in unfair dismissal jurisprudence.
Fitness for duty: whether the Respondent’s zero alcohol requirement was a lawful and reasonable standard for a safety-critical heavy vehicle role, and whether breach justified dismissal in context.
Reliability of test evidence: whether the breath test results were reliable, including device calibration, testing method, and alleged contamination from cologne or sanitiser.
Procedural fairness: whether the Applicant was notified of reasons, warned about unsatisfactory conduct, given opportunities to respond, and permitted a support person.
Comparative treatment: whether the Applicant was unfairly singled out compared with other workers who had positive alcohol readings.
Motive and industrial context: whether industrial activity was a substantial and operative reason for dismissal, or merely background.

Chapter 4: Statements in Affidavits

Affidavits in unfair dismissal matters often do two jobs at once. They are a factual narrative, but they are also a strategic document designed to position facts under the criteria in s 387 of the Fair Work Act 2009 (Cth). This case illustrates the contest between two affidavit styles: one that frames incidents as isolated and explainable, and another that frames them as a cumulative safety pattern.

How the Applicant’s Affidavit Strategy Typically Operates in This Case Type

The Applicant’s affidavit approach, as reflected in the evidence, was to:

reframe rules as flexible: describing depot practices as common and implicitly tolerated;
isolate incidents: arguing that each incident should be judged on its own, rather than as a compounding pattern;
emphasise absence of illegality: pointing out that the alcohol level was under the statutory road threshold for the particular class of vehicle at the time; and
shift the emphasis to fairness: focusing on comparative outcomes and alleged inconsistency in policy application.

This is a familiar unfair dismissal strategy because it aligns with what “harshness” can mean to a lay reader: if the conduct did not break the law, and other employees were treated more leniently, dismissal can feel excessive. The forensic risk is that industrial law does not require illegality. It requires compliance with lawful and reasonable workplace standards, especially in safety-critical work.

How the Respondent’s Affidavit Strategy Typically Operates in This Case Type

The Respondent’s affidavit approach, as reflected in the accepted evidence, was to:

build a chronology of escalation: warnings, directions, training expectations, and further breaches;
anchor facts in contemporaneous records: notes made at the time, letters, policies, and testing certificates;
present the workplace as safety-critical: heavy vehicle operation near public access, early hours, and foreseeable harm; and
show process integrity: opportunity to respond, support person present, and show cause steps.

The strategic strength here is that s 387 requires the Commission to examine valid reason and process. A well-documented chronology, with consistent policy references and records of warnings, often becomes decisive because it allows the tribunal to see patterns rather than snapshots.

Comparing Competing Expressions of the Same Fact

A single factual event can be narrated in two fundamentally different ways:

“Driving on the operator side was safer because changing sides would involve exiting into traffic” versus “There were available safe places to pull over and change sides, and the practice was contrary to clear safety rules.”
“I was allowed to walk around between tests” versus “A direction was given to remain in the controlled testing environment, consistent with standard practice.”
“I was treated harshly compared to others” versus “Those workers were not comparable because they lacked the same disciplinary history.”

The Commission’s role is not to choose the more sympathetic story. It is to decide which account is more reliable, supported, and consistent with objective materials.

Strategic Intent Behind the Commission’s Procedural Directions on Affidavits

In cases where credibility and contemporaneous records matter, the Commission’s case management typically pushes parties toward:

clear identification of disputed facts;
production of contemporaneous documents, not just recollections; and
witness evidence structured around the s 387 criteria.

That approach tightens the case to what can actually be determined: whether the employer’s decision was within the range of reasonable responses, supported by evidence, and reached through fair procedure.

Chapter 5: Court Orders

Before the final hearing, the procedural architecture in a matter like this typically includes:

directions for filing and service of witness statements and documentary material;
directions for production of policies, warning letters, and training records;
permission for support persons and clarification of witness attendance;
timetabling for evidence-in-chief by statement with cross-examination at hearing; and
where technical issues arise, directions permitting expert evidence on specialised topics such as testing reliability and impairment.

In this matter, expert evidence was admitted regarding breath test reliability and likely impairment, reflecting that the core factual dispute was not merely whether the number existed, but whether the number could be trusted and what it meant in a safety context.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing did not operate like a moral debate. It operated like a structured audit of competing narratives against contemporaneous evidence and statutory criteria.

Process Reconstruction: Live Restoration

Cross-examination in unfair dismissal cases often targets three things:

internal consistency of a witness account;
alignment with contemporaneous documents; and
plausibility against workplace systems.

Here, the Applicant’s account contained points that created vulnerability under cross-examination:

Denial of speaking at a meeting was weighed against earlier written material indicating the Applicant did speak.
Assertions about being allowed to move freely between tests were weighed against how confirmatory testing is ordinarily controlled and timed.
Disputes about signage and whether the speed limit was known were weighed against the employer’s evidence of repeated communication and multiple signs.

The Respondent’s witnesses were tested on:

whether their accounts were contemporaneous or reconstructed;
whether policy language was applied consistently; and
whether the employer’s reaction was proportionate and not pre-determined.

The Commission accepted key Respondent evidence where it was supported by notes made at the time and by multiple witnesses telling consistent stories.

Core Evidence Confrontation

The decisive evidence clusters were:

The cumulative disciplinary record: accidents, driving practice breaches, behavioural misconduct during stand-down, and the alcohol test event.
The documentary scaffolding: warning letters, policy excerpts, training records, and testing procedures aligned with Australian Standards.
The expert evidence: whether the test results were reliable and whether low readings can be treated as safety relevant in a heavy vehicle context.

The Applicant’s attempt to recast the alcohol reading as minor was met by a workplace reality: the rule was a zero reading. The legal question became whether that rule was lawful and reasonable and whether breach, considered with prior history, justified dismissal.

Judicial Reasoning: How Facts Drove the Result

The Commission’s reasoning method was cumulative and safety-centred. It did not treat any single incident as automatically terminating. Instead, it assessed whether repeated breaches showed a pattern of disregard and whether the final incident confirmed that the risk profile had become unacceptable.

A determinative statement captured that approach:

“None of the matters would, in isolation, warrant dismissal. But considered in totality, the breaches were of sufficient gravity.”

This mattered because it answered the Applicant’s strongest rhetorical position: “each issue is small.” The Commission accepted the opposite industrial logic: repeated safety breaches in a safety-critical role can become a valid reason when the pattern shows an unwillingness or inability to comply.

A second determinative statement drew a sharp line between road legality and workplace standards:

“The road user limit was not the benchmark. The workplace policies set the tolerance at zero.”

This mattered because it prevented the case collapsing into a traffic law argument. Unfair dismissal is not determined by whether the employee committed a criminal offence. It is determined by whether the employer had a valid reason related to conduct or capacity in the employment relationship, and whether it acted fairly.

Chapter 7: Final Judgment of the Court

The Commission dismissed the unfair dismissal application. The Commission determined the Applicant was not unfairly dismissed because:

there was a valid reason for dismissal related to conduct and repeated breaches of safety rules and lawful directions; and
the process was procedurally fair, including warnings, notification of reasons, opportunity to respond, and permission for a support person.

The practical result was that no unfair dismissal remedy was granted and the application was dismissed.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

This chapter breaks down why the Respondent succeeded by disassembling the decision into a repeatable litigation logic: statutory criteria plus evidence chain plus judicial reasoning plus failure points.

Special Analysis

This decision has jurisprudential value because it demonstrates a disciplined method for handling “low-level alcohol” cases in safety-critical roles. It shows that:

the law does not require the employer to prove impairment beyond doubt;
a lawful and reasonable zero-BAC workplace standard can be enforced, especially where the work involves heavy vehicles and foreseeable harm; and
the decisive evaluation is cumulative, not atomised.

It also underscores a caution for employers: even where dismissal is upheld, procedural slippage in policy compliance can still be criticised. The Respondent’s survival was not because it was perfect; it was because the defects were marginal to the fairness calculus in the particular circumstances.

Judgment Points

The Commission treated the role as safety-critical, making compliance expectations stricter in practical effect.
The Commission distinguished statutory road limits from workplace policy standards, rejecting “it was legal to drive” as a complete defence.
The Commission preferred contemporaneous, corroborated evidence over later reconstructions, especially about the stand-down incident.
The Commission accepted expert evidence supporting test reliability and treated device calibration and accredited collection as decisive factors.
The Commission applied comparative fairness carefully: it required meaningful comparability, not superficial similarity in alcohol readings.

Legal Basis

The legal basis for the decision is anchored in:

the unfair dismissal framework in Part 3-2 of the Fair Work Act 2009 (Cth), including s 387 considerations such as valid reason, notification, opportunity to respond, support person, warnings, size of enterprise, and other relevant matters; and
the industrial law principle that lawful and reasonable directions and safety policies can define employment obligations beyond the minimum set by road or criminal law.

The Commission also referred to authority illustrating that a policy breach alone is not automatically a valid reason; the seriousness and context matter. The decision referenced Sydney Trains v Hilder [2020] FWCFB 1373 as a reminder to evaluate gravity and totality, not merely textual breach.

Evidence Chain

The Respondent’s success was built on an evidence chain that worked like a locked gate system: each gate made it harder for the Applicant to escape the conclusion.

Gate 1: Established safety history
Two separate vehicle incidents with damage provided a foundation: even if accidental, they were framed as failures of basic heavy vehicle caution.

Gate 2: Clear safety directions
The Respondent demonstrated the existence of clear rules about driving position, depot speed limits, and scanning surroundings, supported by manuals and briefings.

Gate 3: Escalating warnings and notice of consequences
The Respondent proved repeated warnings and the explicit message that future breaches could lead to termination. This reduced the plausibility of surprise or misunderstanding.

Gate 4: The stand-down behavioural event
The Respondent established that the Applicant’s reaction to discipline included refusal to comply with confidentiality directions and directions to leave site, with operational disruption. This moved the case beyond technical driving errors into compliance and workplace behaviour.

Gate 5: Objective alcohol testing data plus expert support
Two positive readings were supported by an accredited provider and calibrated device. Expert evidence addressed reliability and the limited relevance of cologne or sanitiser in the testing mode used.

Gate 6: Cumulative gravity
The Commission treated the above as a pattern: repeated disregard for safety and lawful directions, not a one-off lapse.

Judicial Original Quotation

Two concise passages capture the ratio-like reasoning spine:

“The road user limit was not the relevant benchmark. The workplace standard was zero.”

This is determinative because it defines the legal lens: employment obligations can be stricter than public law minima where they are lawful and reasonable.

“Taken together, the breaches were of sufficient gravity to constitute a valid reason.”

This is determinative because it defeats the “divide and conquer” strategy. The Commission assessed totality, allowing repeated smaller breaches to become a valid reason when they show a pattern of non-compliance.

Analysis of the Losing Party’s Failure

The Applicant’s failure was not primarily a failure of sincerity or personality. It was a failure of case architecture.

Over-reliance on road legality
The Applicant’s strongest intuitive point for a general audience was that the reading would not necessarily breach ordinary driving limits. Industrial law did not reward that framing because the employment obligation was defined by a lawful and reasonable zero standard in a safety-critical environment.
Insufficient dismantling of the cumulative narrative
To win, the Applicant needed to convincingly reframe the series of incidents as either not occurring, not proven, not serious, or not fairly responded to. The Commission accepted many incidents as proven, supported by documents and credible witnesses.
Credibility erosion through inconsistency and plausibility gaps
Where the Applicant’s account conflicted with earlier material or with operational logic, the Commission treated those conflicts as weakening reliability.
Comparative fairness argument lacked true comparators
The Applicant relied on other employees who had positive readings. The Commission accepted that they were not comparable because they did not share the Applicant’s disciplinary history. Comparative fairness requires meaningful similarity in role, risk, history, and response.
Industrial context did not crystallise into proof of improper motive
The Applicant’s union and safety representative roles formed part of the background. The Commission did not find evidence that industrial activity was the true reason, and treated the problematic conduct as personal to the Applicant’s obligations rather than representative activity.

Five-Link Structure: 8 Victory Points for the Successful Party

Victory Point 1: Framing the Role as Safety-Critical

Statutory Provisions: s 387(a) Fair Work Act 2009 (Cth) requires assessment of valid reason related to conduct or capacity.
Evidence Chain: heavy vehicle driving, early hours, depot access roads used by the public, safety manuals, life-saving rules.
Judicial Original Quotation:

“The workplace standard was zero.”
Why it won: Safety-critical framing raises the weight of breaches because foreseeable harm is high. The Commission’s logic is that when consequences are severe, the tolerance for non-compliance shrinks.
Losing Party Failure: The Applicant tried to normalise conduct as common practice or minor. That approach collapses when the tribunal accepts the work as safety-critical.

Victory Point 2: Converting Multiple Small Incidents into One Industrial Risk Story

Statutory Provisions: s 387(h) allows consideration of other relevant matters, including cumulative conduct.
Evidence Chain: collisions, driving position breaches, speed limit breaches, stand-down behaviour, alcohol test.
Judicial Original Quotation:

“Taken together, the breaches were of sufficient gravity.”
Why it won: The Respondent avoided the trap of needing one catastrophic incident. It argued pattern, escalation, and persistent disregard.
Losing Party Failure: The Applicant adopted a “single-incident defence” repeatedly. The tribunal applied a “composite picture” style evaluation: the whole pattern defined the risk.

Victory Point 3: Building a Document-First Case Instead of a Memory-First Case

Statutory Provisions: s 387(c) and s 387(d) focus on notification and opportunity to respond, which are often proven through letters and meeting records.
Evidence Chain: warning letters, show cause letter, meeting history, policy excerpts, training records.
Judicial Original Quotation:

“The valid reason was notified in advance in the show cause letter.”
Why it won: Documented process converts fairness arguments into checkable facts.
Losing Party Failure: Where the Applicant relied on contested recollections, the Respondent anchored facts in contemporaneous material the Commission could trust.

Victory Point 4: Neutralising Testing Attacks Through Standards and Expertise

Statutory Provisions: s 387(a) focuses on valid reason; reliability of alleged breach evidence is foundational.
Evidence Chain: accredited provider, calibrated device, confirmatory test, expert evidence explaining active mode testing and calibration assumptions under Australian Standards.
Judicial Original Quotation:

“A calibrated device can be taken to have produced a valid result.”
Why it won: The Respondent made the testing evidence boring and technical, which is often exactly what tribunals prefer when deciding reliability.
Losing Party Failure: Alternative explanations like cologne or sanitiser require evidentiary traction. Without proof of interference or a credible mechanism consistent with the testing method, the tribunal treats them as speculative.

Victory Point 5: Disentangling Legality from Employment Obligations

Statutory Provisions: s 387(a) and general principles of lawful and reasonable directions in employment.
Evidence Chain: contract clauses requiring compliance with policies, code of conduct, drug and alcohol procedure with a zero reading.
Judicial Original Quotation:

“The road user limit was not the benchmark.”
Why it won: The Respondent positioned the rule as a workplace fitness requirement, not a criminal standard.
Losing Party Failure: The Applicant’s “not unlawful” argument did not answer whether the direction was lawful and reasonable and whether breach in context justified dismissal.

Victory Point 6: Using the Stand-Down Incident to Prove Non-Cooperation

Statutory Provisions: s 387(a) valid reason and s 387(h) other relevant matters.
Evidence Chain: evidence of refusal to follow confidentiality directions, refusal to leave, operational disruption, threats to management.
Judicial Original Quotation:

“He repeatedly refused to do what he was asked.”
Why it won: This shifted the case from skill-based errors to attitude and compliance: whether the employee would follow directions in a regulated environment.
Losing Party Failure: Even if the Applicant believed the process was unfair, the lawful response is to contest it through proper channels, not to defy directions and disrupt operations.

Victory Point 7: Making Comparative Fairness a Forensic Test, Not a Moral Plea

Statutory Provisions: s 387(h) other relevant matters includes consistency, but only where comparators are truly comparable.
Evidence Chain: other employees had positive tests but lacked similar disciplinary histories; remorse and responses differed.
Judicial Original Quotation:

“He was not in the same position as the other employees.”
Why it won: The Respondent did not deny differences; it proved them.
Losing Party Failure: The Applicant’s comparator argument did not overcome the Respondent’s distinction based on disciplinary history and overall risk profile.

Victory Point 8: Winning Despite Minor Policy Non-Compliance by Containing the Damage

Statutory Provisions: s 387 fairness assessment considers procedural integrity but weighs it against the overall case.
Evidence Chain: employer allowed limited duties after positive test and did not strictly follow all policy steps; Commission treated this as marginal in the circumstances.
Judicial Original Quotation:

“The failures were of marginal significance to fairness.”
Why it won: The Respondent’s core case did not depend on perfect policy compliance; it depended on the existence of a valid reason and a generally fair process.
Losing Party Failure: The Applicant could not show that the policy departures caused substantive unfairness that outweighed the cumulative valid reason.

Reference to Comparable Authorities

Sydney Trains v Hilder [2020] FWCFB 1373: The Full Bench emphasised that a policy breach is not automatically a valid reason; the seriousness and totality of circumstances must be evaluated to decide whether the reason is sound, defensible, and well-founded.

This decision is comparable because it reinforces the analytical method: the tribunal must assess gravity, context, and proportionality, not merely whether the policy text was technically breached.

Implications

Safety rules are not moral judgments; they are risk controls. In safety-critical work, the law often treats risk controls as the spine of the employment relationship.
“It was legal” is not the same as “it complied with a lawful and reasonable workplace standard”. A workplace can set stricter rules where the job carries higher foreseeable harm.
Repeated minor breaches can become one major industrial problem when they show a pattern. Consistency over time matters more than brilliance on one day.
Documentation is not bureaucracy for its own sake. In disputes, documentation becomes the memory of the workplace, and tribunals often trust it more than recollection.
Comparative fairness requires true comparators. Similar numbers alone are not enough; history, role risk, response, and prior warnings change the fairness analysis.

Q&A Session

Question 1: If the alcohol reading was low and not unlawful for ordinary driving, why did the employer still win?
Because unfair dismissal focuses on employment obligations. The Commission accepted that the workplace set a lawful and reasonable zero reading standard for a safety-critical heavy vehicle role, and the Applicant breached it in context of prior safety breaches.

Question 2: Can an employee defeat a breath test by arguing cologne or sanitiser caused contamination?
It depends on evidence. A tribunal will look at the testing method, device calibration, accredited collection, confirmatory testing, and expert evidence. Without a credible mechanism and supporting proof, contamination arguments tend to be treated as speculative.

Question 3: Does being a union delegate or health and safety representative protect an employee from dismissal?
Those roles do not create immunity. If an employee is dismissed for conduct or capacity reasons supported by evidence, the dismissal can be upheld even where industrial context exists. To succeed on a targeting theory, evidence must show the role was a substantial and operative reason.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

Chapter A1: Practical Positioning of This Case

Case Subtype:

Unfair Dismissal in a Safety-Critical Heavy Vehicle Role involving Drug and Alcohol Policy and Repeated Safety Breaches

Judgment Nature Definition:

Final decision determining unfair dismissal remedy application

Chapter A2: Self-examination of Core Statutory Elements

Core Test: Unfair Dismissal under the Fair Work Act 2009 (Cth)

This self-examination checklist is a rigorous guide to how unfair dismissal disputes tend to be determined. Outcomes remain fact-specific and the risk profile is relatively high where safety-critical work is involved.

Step 1: Coverage and Eligibility Gateway

Was the person protected from unfair dismissal?
Did the person complete the minimum employment period?
Was the person covered by an award or enterprise agreement, or were their earnings below the high-income threshold?
Was the dismissal a genuine redundancy?
If the employer is a small business employer, does the Small Business Fair Dismissal Code apply?

Step 2: The s 387 Valid Reason Test

Was there a valid reason related to the person’s capacity or conduct?
Is the reason sound, defensible, and well-founded when assessed against the evidence?
In safety-critical roles, does the alleged conduct create foreseeable risk to safety, property, the public, or regulatory compliance?
Where the allegation is a breach of policy, what is the relative importance of the policy and the gravity of the breach?
Where there are multiple allegations, does the totality form a cumulative valid reason even if single incidents might not?

Step 3: Notification and Opportunity to Respond

Was the employee notified of the reasons for potential dismissal before the decision was made?
Were the allegations clear enough to answer, with adequate particulars?
Was the employee given a real opportunity to respond, including time to provide a written response and attend meetings?

Step 4: Support Person

Was there any unreasonable refusal to allow a support person at dismissal-related discussions?

Step 5: Warnings about Unsatisfactory Performance

If dismissal relates to unsatisfactory performance rather than serious misconduct, was the employee warned?
Were the warnings clear, documented, and did they identify the consequence of continued breach?

Step 6: Employer Size and HR Resources

Did the employer have dedicated HR expertise, and if so, were procedures appropriately robust?
If the employer lacked HR expertise, does that context explain procedural informality, and if so, does it affect fairness?

Step 7: Other Relevant Matters

Comparative treatment: were other employees in materially similar positions treated differently, and are they true comparators?
Proportionality: was dismissal within the range of reasonable responses?
Personal hardship: length of service, age, and financial impact can influence harshness, but do not automatically override a valid reason.
Industrial context: if targeting is alleged, is there evidence that industrial activity was a substantial and operative reason?

Core Test: General Protections

If an unfair dismissal case is relatively weak, a worker may consider whether a general protections claim is more viable, noting different tests and risks.

Was adverse action taken against the employee?
Was a workplace right exercised, or industrial activity engaged in, or a protected attribute involved?
Was that protected reason a substantial and operative reason for the adverse action?
Reverse onus risk: can the employer prove the protected reason was not a reason for the action?

Core Test: Sham Contracting

Less relevant to this case, but included as a compulsory industrial relations checklist.

Is the worker genuinely an independent contractor, shown by control, tools, risk, ability to delegate, and multiple clients?
Or does the arrangement tend to be characterised as employment in substance?

Chapter A3: Equitable Remedies and Alternative Claims

In employment disputes, equitable doctrines and common law pathways sometimes operate as secondary strategies when a statutory pathway is unavailable or relatively high risk.

Procedural Fairness

Was the employee given a genuine opportunity to be heard before termination?
Was the decision-maker impartial and free of apprehended bias?
Were allegations put with sufficient detail to answer?
Were key documents disclosed to allow a meaningful response?

This pathway is more aligned with judicial review of administrative decisions, but procedural fairness concepts can still illuminate industrial fairness arguments and can support related claims where an employer’s process is unusually defective.

Ancillary Claims

If an unfair dismissal claim is unlikely to succeed, consider whether the facts support a general protections claim involving reverse onus.
If the employer’s reasoning is inconsistent over time, or if documents suggest mixed motives, the general protections pathway can sometimes become more attractive, though it carries its own forensic risks and evidentiary burdens.

Chapter A4: Access Thresholds and Exceptional Circumstances

Regular Thresholds

Unfair dismissal filing time limit: 21 days after dismissal takes effect.
Minimum employment period: generally 6 months, or 12 months for a small business employer.
High-income threshold: if not covered by an award or enterprise agreement, earnings above the threshold can exclude protection.

Exceptional Channels

Late filing: extensions are sometimes granted where there are exceptional circumstances, but the risk tends to be relatively high without strong reasons and prompt action.
Small Business Fair Dismissal Code: if applicable, compliance can shift the fairness analysis significantly.

Suggestion

Do not abandon a potential claim merely because a threshold appears unmet. Carefully compare facts against exceptions, because procedural and eligibility issues can sometimes be determinative.

Chapter A5: Guidelines for Judicial and Legal Citation

Citation Angle

This authority tends to be useful in submissions involving:

safety-critical workplace standards, particularly zero alcohol policies;
cumulative conduct and repeated safety breaches as a valid reason;
the distinction between public law minima and workplace standards; and
comparative fairness analysis requiring true comparators.

Citation Method

As Positive Support: When a matter involves repeated safety breaches, warnings, and a final incident engaging a safety-critical policy, citing this authority can support an argument that totality and gravity justify dismissal.

As a Distinguishing Reference: If an opposing party relies on this authority, consider distinguishing on factors such as absence of prior warnings, lack of safety-critical context, stronger evidence of inconsistent treatment with true comparators, or a materially defective process depriving genuine opportunity to respond.

Anonymisation Rule

When describing parties in commentary or summaries, use Applicant and Respondent, and avoid real names.

Conclusion

This case distils a practical rule for safety-critical workplaces: fairness is not only about one mistake; it is about whether the evidence shows a repeated pattern of non-compliance with lawful and reasonable safety standards, assessed through a procedurally fair process.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Fair Work Commission ([2025] FWC 403), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

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