Refusal to undertake breath test at work leads to manager’s unfair dismissal

In the recent decision of Ms Chantelle Tamati v MQT Pty Ltd [2025] FWC 2607, the Fair Work Commission (FWC) held that the decision of the employer to summarily terminate an employee’s employment for refusing an alcohol breath test after a long lunch amounted to an unfair dismissal, one which awarded the terminated employee the highest amount of compensation available, totalling $63,500

Facts

The Applicant, Ms Chantelle Tamati, commenced employment as a manager with MQT Pty Ltd (MQT) on 27 September 2021, pursuant to an employment contract dated 30 September 2021.

On 10 April 2025, Ms Tamati went to lunch with two of her colleagues, all of whom were managers of MQT. At this lunch, Ms Tamati drank one alcoholic drink. The three managers returned to the workplace, when one of the managers, Mr Chris Helene, was observed to be disruptive in the office upon his return. Mr Helene made a phone call to MQT’s Director, Mr Daniel Mikosic. Following this phone call, Mr Mikosic suspected that Mr Helene was under the influence of alcohol, and directed MQT’s National Compliance Manager, Mr David Muir, to conduct an alcohol breath test on Mr Helene.

During a meeting between Mr Muir and Mr Joel Robson, MQT’s Human Resources Manager, Mr Helene refused to undertake the alcohol breath test subsequently and announced his resignation. Following Mr Helene’s exit, it was suggested that Ms Tamati also be breath tested, on the basis she was ‘acting a bit different’ on her return from lunch.

Ms Tamati was directed to meet with Mr Muir and Mr Robson. At this meeting, Ms Tamati admitted that she had one alcoholic beverage at the lunch. Ms Tamati was then directed to undertake a breath test. Ms Tamati queried why she was being asked to take this test and became defensive. Mr Muir advised Ms Tamati that she was ‘out of character’ and part of a group that has been at lunch, where it appeared that alcohol had been consumed. Mr Muir proposed to conduct an alcohol breath test on Ms Tamati based on ‘suspicion’.

MQT’s other Human Resources Manager, Mr Golinski, then entered the meeting. Mr Golinski advised Ms Tamati that she had been given a lawful and reasonable direction to undertake the test, in accordance with MQT’s Drug and Alcohol Policy (the Policy). Ms Tamati responded that she would do the test but asked on what basis the test is being administered. Mr Golinski asked again if Ms Tamati would do the test so that ‘we could all go home’. Ms Tamati queried Mr Golinski what would happen if she refused. Mr Golinski replied that she would be suspended, and following a formal meeting, her employment could be terminated. Ms Tamati advised that she would not take the breath test. Ms Tamati was then told that she would be suspended with pay, and that MQT would be in touch with her regarding a formal meeting on the following Monday.

At that meeting, Mr Golinski advised that Ms Tamati refused to comply with a lawful and reasonable direction. Ms Tamati was asked to provide a reason for refusing the breath test, to which she again requested the basis on which the test was sought. Mr Golinski advised that MQT was within its rights to ask employees to undertake an alcohol. Ms Tamati then again queried why she was being subject to a ‘random’ alcohol test. Mr Golinski explained that the test was being administered ‘under suspicion’. Ms Tamati requested a copy of the Policy and procedures, which was provided to her by Mr Golinski.

Ms Tamati again queried on what grounds she was being subject to the test. Mr Robson then explained the test was requested following the incident involving Mr Helene. The meeting then concluded with Mr Golinski advising Ms Tamati that her employment was terminated effective immediately.

On 15 April 2025, Mr Golinski provided Ms Tamati with a termination letter. Ms Tamati then lodged an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (the FW Act)

Decision

Valid reason

The FWC acknowledged Ms Tamati was dismissed for serious misconduct on the basis that she refused to undertake a breath test, which MQT submitted was a lawful and reasonable direction. However, the FWC was not satisfied that the direction to take the test was in fact reasonable and lawful. In arriving to this conclusion, the FWC considered the reasons given to Ms Tamati during the meetings at which she was directed to take the test. The FWC considered whether the Policy permitted the testing of an employee based on ‘suspicion’ and determined that in this case, the facts did not give rise to a suspicion such that the Policy should have applied (as her conduct did not amount to the indicators of intoxication listed in the Policy).

The FWC then found that Ms Tamati’s refusal to take the test was justified, given that she was not provided with the Policy at the time she was directed to take the test and there was no clear basis for the test to be administered.

In reviewing the Policy, the FWC observed that it did not specify a sanction where an employee refuses a test, rather only where a positive result occurs. The FWC acknowledged that Ms Tamati was told that she would be suspended if she refused to take the test and that dismissal may follow. This was not stated in the Policy.

The FWC then noted that no investigation actually took place following Ms Tamati’s suspension from the workplace. Importantly, the FWC also noted that Mr Golinski had formed the view that Ms Tamati was to either take the test or be suspended without having first considered other disciplinary options, as contemplated by the disciplinary policy.

In totality, the FWC considers that the direction to take the test was not reasonable and therefore the decision to terminate Ms Tamati’s employment was not ‘sound, defensible or well founded’. On this basis, there was no valid reason for the dismissal.

Other relevant considerations

The FWC then considered the fact that Ms Tamati was not provided any with allegations, nor was it put to her that she breached any company policy. The FWC also considered other factors, including that the explanations of the basis for the test given to Ms Tamati were confusing, that Ms Tamati’s behaviour after the lunch was no basis which required her to conduct a test and she showed no signs of intoxication as prescribed in the Policy. The FWC concluded that these factors mean it was unjust for MQT to terminate Ms Tamati’s employment.

Moreover, the FWC gave particular consideration to the fact MQT did not consider other disciplinary actions and that Ms Tamati had otherwise maintained a good record and service for the company.

Ultimately, Deputy President Slevin concluded that the circumstances did not warrant summary dismissal and was satisfied that the dismissal was harsh, unjust and unreasonable. Ms Tamati was awarded compensation of $63,500, being the most the FWC can award to an employee who has been dismissed

Take home message

While employers may assume that any failure to comply with a direction is grounds for disciplinary action, a direction must be reasonable. This means the direction must be consistent with any applicable workplace policies, and the employer should also be able to clearly articulate the basis for the direction if asked. Further, an employer must be mindful that dismissal is not the only disciplinary action available and ensure that procedural fairness is observed.

For more specific information or advice on any of the material contained in this article, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, or Annabelle Narayan on +61 8 8210 1292 or at anarayan@normans.com.au, or Edward De Luca on +61 447 784 887 or at edeluca@normans.com.au.