FWC Overturns Dismissal of Truck Driver for Low-Level Alcohol Reading: Case Assessment and Implications

On 10 July 2025, a Full Bench of the Fair Work Commission (FWC) handed down a significant decision, overturning the unfair dismissal of Roland Barber, a truck driver with Veolia Recycling and Recovery Pty Ltd. This case underscores crucial principles of procedural fairness and proportionality in workplace dismissals.

Background of the Case

Roland Barber, a delegate of the Transport Workers' Union (TWU) and a health and safety representative, faced dismissal after returning a Blood Alcohol Content (BAC) reading of 0.013% at 3:38 AM, and subsequently 0.007% at 4:22 AM, before starting his 4:15 AM shift.

FWC Overturns Dismissal of Truck Driver for Low-Level Alcohol Reading: Case Assessment and Implications

Mr. Barber had attended a TWU function the night before. Initially, Commissioner Sarah McKinnon upheld the dismissal, citing previous unrelated incidents, including minor traffic offences and alleged breaches of confidentiality, as additional justification for termination.

However, Barber challenged the dismissal on grounds of procedural unfairness. He argued that Veolia's dismissal relied on reasons not adequately disclosed to him, and which he had no fair opportunity to address. Crucially, Barber also contended that his personal circumstances, along with his commitment to future compliance with company policies, made the dismissal disproportionately harsh.

FWC Full Bench Decision

The FWC Full Bench, composed of Vice President Mark Gibian, Deputy Presidents Nicholas Lake, and Tony Slevin, allowed Barber’s appeal, identifying significant procedural errors by Commissioner McKinnon. Specifically, they found that Veolia had failed to properly notify Barber of all reasons for dismissal and did not provide him adequate opportunity to respond to certain allegations. This breach of procedural fairness was significant enough to impact the outcome of the initial hearing.

The Bench noted that although Barber’s alcohol breach (0.007% BAC) was a valid reason for concern, the low level, combined with his previously unblemished 16-year service record, his genuine remorse, and the practical measures proposed to prevent recurrence, warranted a disciplinary response less severe than dismissal.

Consequently, the Full Bench ruled that reinstatement, not termination, was the proportionate disciplinary response. They directed Veolia to reinstate Barber with continuity of employment and requested submissions regarding the calculation of backpay.

Analysis and Implications

This case reinforces critical elements employers must observe in disciplinary processes:

• Procedural Fairness: Employers must clearly communicate all reasons for dismissal, allowing the employee adequate opportunity to respond. Failure to do so can invalidate an otherwise justifiable dismissal.

• Proportionality of Response: Termination should be carefully considered against the seriousness of the misconduct and other relevant circumstances, including employee tenure, past conduct, and efforts toward corrective action.

• Documentation and Clarity: Employers should ensure allegations and reasons for disciplinary actions are thoroughly documented, clear, and transparent, to uphold fairness and legal compliance.

For unions and employees, this case underscores the importance of challenging procedural shortcomings and seeking fair and proportionate outcomes, even when some degree of misconduct is established.

Conclusion

The FWC Full Bench decision in Barber v Veolia Recycling and Recovery Pty Ltd [2025] FWCFB 141 highlights essential considerations around procedural fairness and proportionality in unfair dismissal cases. The ruling provides clear guidance for employers on conducting disciplinary proceedings in a fair and balanced manner, while also offering reassurance to employees that genuine procedural errors can result in successful reinstatement.

This case serves as a critical reminder to organisations: dismissal must be both fair and proportionate, with thorough consideration given to the employee’s history, personal circumstances, and willingness to comply moving forward.