VIC Employment Law - Brother Accused by Employer of Doing Drugs - Defamation?

[bobsyouruncle]

My brother was at work recently (at a job he has held with no issues for 2 years) and due to having some time off due to illness, his employer approached him and accused him of having a drug problem and told him that he would need to leave immediately and have a drug test done and that he would not be allowed to work until further notice. After returning home, my brother was informed by his workmates that after he had been sent home, his employer called a meeting with all of the staff and told them that my brother had been sent home because 'he had a drug problem' among other completely false claims.

This outraged my brother's workmates as they know him well and know this to be untrue. My brother was then paid for the first week but not for the second and once the drug test results came back, they confirmed a negative result. Despite this my brother has still not been able to return to work and is now extremely distressed about the thought of returning due to the way he has been treated and because of the false claims that have been made about him to all of the other staff members.

I don't know much about employment law regarding employee rights but I'm pretty sure this falls under defamation, and there are also a number of other things that seem very wrong with this whole situation. If someone could please enlighten us about this situation and what his rights would be moving forward, we would really appreciate it.

 

[JS79]

There could potentially be two causes of action here : Defamation and Unfair Dismissal.

Defamation
Defamation is defined as being an action by a person (or many people) that has destroyed another person's reputation either by verbal or written information. In Victoria, the tort of defamation is governed by common law and the Defamation Act 2005

The Plaintiff (the person bringing the case) has the burden of proof to prove that the information that was provided was false, the information must of been communicated either verbally or written to a third party and the information that was communicated to a third person must have reference to the particular person.

An article about defamation can be found here: Have You Been Defamed? What You Need to Know About Defamation Law in Australia - Legal Blog - LawAnswers.com.au

Unfair Dismissal
To establish an unfair dismissal claim - an employee (your brother) will need to prove that he was:

• dismissed;
• the dismissal was harsh, unjust or unreasonable;
• was not a case of genuinely being made redundant; or
  
• the dismissal was not consistent with the small business fair dismissal code (that is if the employee was employed by a small business - which is a business with less than 15 employees).

I have found a link that should be able to help your brother to determine if he would be able to lodge an unfair dismissal claim - please take a look at the qualification facts - that an employee would have to of been employed for 6 months prior to be able to lodge an unfair dismissal claim and this extends to 12 months if it is in fact a small business.

Unfair dismissal - Ending employment - Fair Work Ombudsman

He can also seek legal advice from an employment lawyer: Get Connected with the Right Lawyer for You

Good luck

 

[Rod]

Why has your brother been unable to return to work with a clean result? Makes me think others reasons are behind the situation.

Agree with JS79 that actions are possible, but if he still has a job that he wants to keep, then he should forestall any action till he knows the future of his job. Send an email to the boss stating he has a clean result and intends to resume work on Monday/tomorrow/whatever day. The onus is then on the boss to give a reason to not turn up if the boss no longer wants him.

Important to put things in writing.

 

[Serge Gorval]

It sounds like your brother is being managed out! Fortunately we have protection against this sort of conduct. I believe your brother has a potential constructive dismissal claim however more info is needed.