Worker argues use was during his days off and was unaware that traces would remain in his system
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim involving a security worker who was dismissed after returning a positive drug test for methylamphetamine and amphetamine.
The worker sought compensation, arguing that the drug testing procedure was unfair and that his dismissal was harsh, unjust, and unreasonable.
The worker contended that he had used methylamphetamine during his days off and was unaware that traces would remain in his system when he returned to work.
He maintained that he was not impaired during his shift and disputed aspects of the testing procedure, claiming it was conducted inappropriately and that others were informed of his positive result.
Drug testing procedures spark workplace disputes
The worker had been employed as a full-time security guard since March 2022, working primarily overnight shifts at the gatehouse of a distribution centre. His role included monitoring and responding to security incidents and emergencies such as fires and break-ins, requiring him to remain alert and respond promptly to issues that arose.
The circumstances leading to the drug test began when another employee discovered drug paraphernalia in the workplace microwave. On 12 November 2024, a day-shift worker contacted the operations support centre manager stating: "I found a bong in the microwave oven just now." This discovery prompted concerns that security guards may be using illegal drugs whilst on duty.
Following this incident, the company arranged for drug testing to take place at the gatehouse on 21 November 2024. The worker was tested at approximately 5:11am by an external testing provider.
During the initial testing procedure, when asked if he had taken any prescription or non-prescription drugs in the last seven days, the worker told the tester "that he had taken methamphetamine through smoking and MDMA within the last seven days."
Testing results reveal policy breach
The initial saliva test showed a non-negative result for methylamphetamine, requiring secondary testing. The drug screener explained: "The saliva swab device showed a non-negative result for methamphetamine after about 10 minutes. I know this because there are coloured strips on the saliva swab device which show a test line and control line for a drug family; in this case the absence of a test line for methamphetamine was not visible and indicated further testing was required."
Secondary testing was conducted using plastic strips placed under the worker's tongue, which were then sent to a laboratory for confirmatory analysis. The pathology report returned confirmed positive results for amphetamine at 36.8 ng/mL and methylamphetamine at 208.3 ng/mL. The company's drug and alcohol testing procedure specified minimum detectable amounts of 50 ng/mL for amphetamine-type substances.
The worker was placed on employer-initiated paid leave pending the laboratory results. When the confirmed positive results were received, the company sent a show cause letter stating:
"Based on the evidence that is available to us we have conclude the following: That you have returned a confirmed Positive drug test for Amphetamine & Methylamphetamine. The results indicate the consumption of the drug Methamphetamine as known as Ice. This non-negative result is in direct violation of [the company's] Code of Conduct policy and Drug and Alcohol policy."
Policy compliance becomes dismissal grounds
During the show cause meeting conducted on 29 November 2024, the worker was asked why he attended for work with drugs in his system. He responded: "Yes, I'm a user on my days off. I just had 2 days off and that might be the reason why my result was positive."
When asked about his awareness of the drug and alcohol policy, the worker stated: "No, I wasn't aware of any Drug and Alcohol policy. I also didn't know that the drugs would be in my system still."
The company's head of people and culture responded: "You signed your employment contract which clearly states that being under the influence of drugs whilst on duty is serious misconduct, and in your induction you acknowledged that you have read and understood the Company's policies, which include the Drug and Alcohol Policy." The meeting concluded with the worker being informed that his employment would be terminated immediately for serious misconduct.
The company's employment agreement specified that serious misconduct included "consumption of alcohol or use of drugs whilst on duty, or being under the influence of alcohol or drugs including, without limitation, illegal drugs and drugs which impact your ability to work effectively and safely."
The drug and alcohol policy stated that workers must not return a positive illegal drug test with levels over the minimal detectable amounts specified in Australian standards.
Drug test evidence supports dismissal decision
The company engaged a consultant toxicologist to provide expert evidence on the test results. The expert stated that methylamphetamine levels of 208 ng/mL were "indicative of recent use" and that "the concentration of methylamphetamine and its corresponding amount of amphetamine was indicative of use within a few hours of the drug test."
The expert explained that methylamphetamine "produces a rapid onset of euphoria, heightened awareness and alertness, excitation, rapid pulse and elevated blood pressure."
However, the expert also noted: "A single oral fluid level cannot be correlated with dose, frequency of use or an exact time of use." The FWC found this evidence significant, stating that while the positive test indicated recent use, it could not definitively establish the exact timing of consumption or whether the worker was impaired during his shift.
The FWC applied established legal principles regarding drug and alcohol policy breaches, noting that "a failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment."
The Commission found: "I have no hesitation in finding that [the worker] breached [the company's] Drugs and Alcohol Test Procedure on 21 November 2024 by returning a positive drug test for methylamphetamine of 208.3 ng/mL which was in excess of the minimal detectable amount of 50 ng/mL."
The FWC concluded: "I have found that [the company] had a valid reason for the termination of [the worker's] employment, being his breach of the Drugs and Alcohol Testing Procedure." The Commission determined: "Having considered each of the matters specified in section 387 of the Fair Work Act, I am not satisfied that the dismissal of [the worker] was harsh, unjust or unreasonable." The application was dismissed.
