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Since 20 May 2019, NSW Police have been empowered to immediately disqualify a driver’s licence for a period of up to three months if a driver blows over 0.05 BAC (Blood alcohol content). The new laws have resulted in concerns being expressed about its interplay with the Court’s discretionary powers in low-range offences, and the additional case load burden the Court will face with urgent applications appealing immediate disqualifications.

With the potential for an increase in immediate licence suspensions, how will this impact the workplace?

At common law, generally speaking, employers are not obliged to continue the employment, or provide alternative duties, if an employee ceases to hold a licence required to perform their duties. But, the loss of licence does not always give an employer safe ground to terminate.

Provided the employee is protected from unfair dismissal, there is a risk that any employee terminated following an immediate licence disqualification may lodge an unfair dismissal application with the Fair Work Commission (the FWC). An employee may succeed in such a claim if the termination was harsh, unjust or unreasonable (which includes that there is no valid reason for termination).

The FWC has consistently held that, in circumstances where holding a driving licence is an “inherent requirement” of the role, termination for licence disqualification is a valid reason for termination. But, when coming to a final view about whether a termination is harsh, unjust or unreasonable, the FWC can consider any matters the presiding member considers relevant.

Some of relevant factors that the FWC has considered when dismissing applications, include whether:

  • an employee was given early notice their employment may be terminated if their appeal application was not successful and permitted to take accrued leave between the disqualification and his appeal
  • an employee had opportunity to respond to the proposal to terminate their employment and their submissions regarding redeployment was considered—although ultimately not able to be accommodated
  • an employer was not incumbent to accommodate an employee with alternative duties, though they may elect to do so
  • an employee was provided the opportunity to have a support person at disciplinary meetings
  • an employer acted reasonably in waiting until the employee’s court matter was decided and was not required to further await any appeal decision, and
  • a disqualification period (12 months) was greater than an employee’s accrued leave balance.

However, while licence disqualification constitutes a valid reason for termination, the FWC has previously held that it does not amount to serious and wilful misconduct that would warrant summary dismissal.

What does this mean for employers?

We are yet to see if the new drink driving laws will see the courts inundated with appeal applications. But, in the meantime, employers that require employees to hold driver’s licences should consider:

  • Whether, if holding a licence is an inherent requirement of a position, the employee holding the position has been notified (through the job advertisement, employment contract and position description).
  • If an employee notifies you that their licence has been, or may be, disqualified, do you have systems in place that provide for:
    • notice to be given to the employee that the disqualification may lead to terminationit may also be useful to cover off on this in any applicable workplace policy or in the employment contract
    • an opportunity for the employee to raise any matters that might mitigate the severity of the licence disqualification (for example, taking accrued leave)
    • consideration being given to whether, in all the circumstances (including the tenure and personal circumstances of the employee, and the business needs) your business could reasonably accommodate the employee for the period of disqualification, for example:
      • offering a period of leave (paid or unpaid) during the licence disqualification, or
      • providing alternative duties for the duration of the disqualification period.
    • consideration being given to arrangements that can be made during any appeal brought by the employee to the decision to disqualify.
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