Dismissed after testing positive for drugs: Is it unfair?

Worker took 'unknown pill' with friends before work shift

Dismissed after testing positive for drugs: Is it unfair?

The Fair Work Commission (FWC) recently dealt with a case involving a stevedore who was dismissed after testing positive for amphetamines and methamphetamines.

The worker challenged his dismissal, claiming it was unfair and seeking reinstatement and back pay.

This case highlights the ongoing challenges employers face in maintaining workplace safety while balancing employee rights.

It delves into issues of drug testing policies, procedural fairness, and the consequences of repeated policy breaches in high-risk work environments.

Background of the case

The worker was employed as a stevedore by a major port operator from February 2022 to November 2023.

His duties included driving vehicles called "straddles" to move containers around the yard and performing "lashing" work, which involved unlatching and placing metal bars on ship containers.

The employer operated in what was described as an environment with "obviously hazardous conditions."

The issue revolved around a drug test conducted in October 2023. While the worker initially tested negative on-site, a subsequent confirmatory test returned positive results for amphetamines and methamphetamines.

This incident marked the worker's third breach of the company's drug and alcohol policy.

Prior to the October 2023 incident, the worker had already received two warnings for similar breaches:

  • In October 2022, he tested positive for amphetamines and methamphetamines, resulting in a formal warning.
  • Later that same month, another positive test led to a final warning and a requirement to attend counselling.

Both warnings included a requirement for the worker to undergo routine drug and alcohol tests over a 12-month period during rostered shifts.

The dismissal process

The events leading to the dismissal began on 23 October 2023, when the worker attended a friend's party and took a 'pill' of unknown substance.

He then attended work at 10 pm the same day and was directed to take a drug and alcohol test, which returned an on-site negative result.

However, the terminal manager directed that the sample be sent for confirmatory testing.

On 25 October 2023, the confirmatory testing report confirmed a positive result for amphetamine and methamphetamine.

Following this, a series of meetings and communications took place between the worker, his union representative, and the employer's management team.

"[The employer] has determined that these factors are outweighed by the repeated and serious nature of your misconduct," the termination letter stated, emphasising the gravity of the situation in the employer's view.

Employer's arguments

The employer argued that the worker's actions breached multiple company policies, including:

  • The Drug and Alcohol-Free Workplace Policy
  • The Fitness for Work (Drug and Alcohol) Procedure
  • The "Safe Work" Life-Saving Commitment
  • The Code of Conduct

They emphasised the high-risk nature of the work environment and the potential safety implications of the worker's actions.

The employer's policies clearly stated that the allowable limit for drugs other than cannabis was to be in accordance with Australian Standards, and any reading at or above this limit would be considered as exceeding the allowable limit.

The worker sought reinstatement and back pay, challenging the fairness of his dismissal. He provided letters of support from his partner and sister, and explained efforts to address his issues, including organising a mental health plan with an employee support service.

Legal considerations

The case raised several important legal and procedural points:

  • The application of company policies and procedures
  • The significance of repeated policy breaches
  • The balance between workplace safety and employee rights
  • The adequacy of the dismissal process and opportunities for the worker to respond

The case also involved considerations under the Occupational Health and Safety Act 2004 (Vic), which outlines the duties of employees to take reasonable care for their own health and safety and that of others who may be affected by their acts or omissions at the workplace.

The Fair Work Commission's decision in this case provides important insights into how drug and alcohol-related dismissals are handled in Australian workplaces, particularly in high-risk industries like stevedoring.

Was it unfair dismissal?

The case highlights several key points:

  • The importance of clear and consistently enforced drug and alcohol policies.
  • The significance of repeated breaches in determining the appropriateness of dismissal.
  • The balance employers must strike between maintaining workplace safety and ensuring procedural fairness.
  • The relevance of an employee's response and efforts to address issues when considering disciplinary action.

The employer's termination letter stated:

"Your actions were a direct breach of the Drug and Alcohol-Free Workplace Policy, the Fitness for Work (Drug and Alcohol) Procedure, and Patrick's 'Safe Work' Life Saving Commitment, which requires that employees are drug and alcohol-free at all times.”

This statement underscores the multiple policy breaches that led to the dismissal and the employer’s emphasis on workplace safety.

“After considering each of the matters specified in s.387 of the Act, my evaluative assessment is that [the worker]'s dismissal was not harsh, unjust or unreasonable. [The employer] had a valid reason for the dismissal, and it afforded procedural fairness to [the worker] prior to making a decision to bring his employment to an end. I have found [the employer] operates in an environment with hazardous conditions,” the FWC said.

“[The worker] attended work on 23 October 2023 knowing that he had taken a 'pill' that morning of unknown contents and that he was on a second and final warning for testing positive to amphetamine and methamphetamine whilst at work. His conduct in that regard was in breach of [the employer]'s D&A Procedure.”

“Notwithstanding [the employer] deviating from its D&A Procedure in sending [the worker]'s sample for confirmatory testing and taking into account the other relevant mitigating circumstances put forward by [the worker], I consider that [the employer]'s decision to terminate [the worker]'s employment after three breaches of the D&A Procedure was not harsh and was an action that a reasonable employer might impose in the circumstances,” the FWC added.

“On balance, I am satisfied that [the employer]'s dismissal of [the worker] was not unfair. The application is dismissed,” the FWC said.

Recent articles & video

Can a client's directive dismiss a worker?

No continuity of service? Labour hire stint breaks worker's claim for long service leave

How can non-compete clauses hurt employers?

'Quiet vacationing': Are your employees working remotely from holiday locations?

Most Read Articles

'Right to disconnect' hits Australia: Everything you need to know about new legislation

Director 'forces’ manager to leave before end of notice period: Is it dismissal?

FWC awards compensation despite worker's poor performance, attendance