FWC looks at 'one-off transgression' versus long-term compliance
The Fair Work Commission (FWC) recently dealt with a case involving a stevedore with 25 years of service who was dismissed after testing positive during a random drug test. The case highlighted questions about workplace drug testing and employee rehabilitation policies.
The worker, who operated heavy machinery at a major port terminal, tested positive for cocaine metabolites in May 2024.
While acknowledging he had used cocaine during his days off, he argued that the dismissal was harsh given his long service record, previously clean drug tests, and the fact that he wasn't impaired at work when tested.
The case raised significant questions about how employers should handle positive drug tests, particularly when dealing with long-term employees who have no previous policy breaches and may be experiencing mental health challenges.
The case centered on a 39-hectare port terminal operating around the clock. The workplace involved significant safety risks, with workers operating multiple cranes simultaneously and moving shipping containers weighing up to 35 tonnes at heights of 42 metres.
The terminal manager gave evidence that at any time, up to 200 people could be on site, including employees, contractors, truck drivers, and visitors. In the previous 12 months, two serious incidents had been reported to Safe Work New South Wales, underlining the critical importance of workplace safety.
The port operator had maintained an Alcohol and Other Drugs Policy since 2012. A June 2022 all-staff email stated: "there is no safe 'window of detection' and that certain drugs can stay in your system for days, weeks or months. This means there is no means by which an employee can be confident there are no drugs in their system when they attend for work."
The May 2024 test detected cocaine metabolites in the worker's system approximately 24 hours after he had last used cocaine. Three medical experts provided evidence about the test results and their implications for workplace safety.
Professor Weatherby, appearing as an expert witness and identified in the decision as an Adjunct Professor in Pharmacology at Southern Cross University, testified: "[The worker] would not have been impaired or intoxicated at the time of the drug test...Benzoylecgonine is pharmacologically inactive and has no impairing effects."
Dr Lewis, identified in the decision as a Consultant Toxicologist and former Principal Scientist, and Dr Williams, a Chief Toxicologist, acknowledged their studies about impairment primarily focused on regular cocaine users rather than occasional use.
The worker had suffered workplace shoulder injuries in April 2022 requiring surgery. During his recovery, he experienced depression and anxiety, which he said led to his drug use as a coping mechanism.
The Alcohol and Other Drugs Policy recognized substance dependency as treatable and offered rehabilitation options for employees who self-disclosed before testing.
However, the Commission found these options weren't explored in this case.
The Fair Work Commission ordered the worker's reinstatement within 21 days and maintained continuity of service, though without back pay for the nine-month period since dismissal. This represented what the Commission called a "significant penalty and appropriate in all of the circumstances of the case."
The Commission found the dismissal harsh and unreasonable, stating: "The Alcohol and Other Drugs Policy should have stated that employees will be tested for inactive metabolites and that detection of these will result in a positive test even after the parent drug has left the employee's system and the person is not regarded as being intoxicated."
The Commission emphasized the worker's overall compliance record: "[The worker] has complied with the Alcohol and Other Drugs Policy on every occasion that he has attended work since it was introduced in 2012, apart from on 27 May 2024. This means that [the worker] has complied with the Policy on literally thousands of occasions which should give [the employer] confidence that the events of 27 May 2024 are a 'one off' transgression."
