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Out-of-hours drug use may be a legitimate cause for dismissal, FWA rules

A hairdresser's unreliable work performance due to out-of-hours drug use was a legitimate reason for his dismissal,

Fair Work Australia has found in its first full bench decision. But the panel cautioned that this finding wouldn't necessarily apply to every case involving employees' recreational drug use.

In John Pinawin t/a RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359, the full bench heard that salon owner Pinawin and his wife had grown concerned about Domingo's disheveled appearance and erratic behaviour in May 2011. Domingo had been employed by the salon since January 2007.

The issue reached a head when the Pinawins received an unannounced 3am visit from Domingo to their home on 19 May 2011. The employee claimed he'd been poisoned and that his apartment had been set alight. The Pinawins returned with Domingo to his apartment but found no evidence of his claims. While assisting Domingo, Mrs Pinawin learned from his cousin and his partner that Domingo had been using recreational drugs for an extended period.

The panel noted that employers generally have no right to regulate the out-of-hours conduct of employees, but that in particular instances this personal conduct might impact on the workplace.

The panel noted a two-tier requirement for dismissal under the Small Business Code for serious misconduct. First, the employer must believe at the time of dismissal that the employee's behaviour was sufficiently serious to warrant dismissal. Second, the employer must have reasonable grounds for this belief, which should include adequate workplace investigation.

Read the full judgment here:

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