Is there a need to distinguish 'presence' and 'impairment' at work?
A worker recently filed an unfair dismissal claim before the Fair Work Commission (FWC) after testing positive for cocaine. He said that he only tried to use it during his leave and that he was not impaired when he went to work.
On October 12, 2022, Reece Goodsell filed an application against Sydney Trains, seeking reinstatement to his former role. On June 4, 2022, after returning from a leave period, Goodsell underwent a random drug test, resulting in a positive test for a cocaine metabolite.
Subsequently, he was suspended and eventually terminated on September 23, 2022. Both parties acknowledged Goodsell's violation of Sydney Trains' Drug and Alcohol Policy (D&A Policy), which the Commission described as “uncomplicated.”
The D&A Policy stated a commitment to a drug and alcohol-free workplace, emphasising a safe environment for all workers and customers. Goodsell, with 26 years of service, held a position of trust as the work group leader (traction) at the time of his dismissal.
Goodsell outlined responsibilities such as conducting pre-work briefings, identifying hazards, coordinating with protection officers, closing work orders, and managing labour costing. He returned to work on June 4, 2022, after a leave period.
Worker tried cocaine during leave
Four days before his return, on May 31, 2022, Goodsell engaged in a night out with friends and tried cocaine. Believing it would be out of his system by his return to work, he acknowledged this judgment error. On June 4, 2022, he underwent a random drug and alcohol test, showing no signs of impairment.
Despite a positive reading for cocaine metabolites in the initial urine sample, Goodsell, maintaining his normal state, expressed that he would not have attended work if he felt impaired. Confirmatory testing returned positive for benzoylecgonine at a concentration of 264ug/L, exceeding the Australian Standard cut-off of 150ug/L.
‘Error in judgement’ cited with disciplinary investigation
On June 17, 2022, Goodsell received a notification of disciplinary investigation, focusing solely on the drug test and the positive reading. Goodsell’s wrote back to the notice and included the following statements:
“I would like to bring to the investigator’s attention that my decision to try cocaine was a one-off. I made an error in judgement for which I am deeply apologetic.”
“At the time I attended work on 4 June 2022, I did not perceive or feel I was impaired or intoxicated in any way shape or form. If I honestly felt impaired in any way, I wouldn’t have attended work,” he said.
“At no stage of my employment with Sydney Trains have I consumed prohibited drugs on agency premises at any time. Safety for workers, customers and myself (sic) is paramount which I take very seriously.”
“I am deeply remorseful of this one-off incident and since receiving notification of the allegation, I have been worried sick. I am worried about the ongoing employment with Sydney Trains and concern for my family,” he added.
After the investigation, the worker was dismissed from employment. “As the work group leader, Goodsell was accountable for overseeing health and safety, including the running of briefings at the commencement of each shift and other safety-related functions. [There are] safety-related aspects of [his] responsibilities,” the employer said.
Presence vs. impairment
The worker argued that “having traces of the metabolite benzoylecgonine in his system in circumstances where he is not impaired is not a valid reason for dismissal.”
He said the employer did not provide any evidence “that he was impaired at work, that he was not able to perform his duties safely; or that there was a risk to the public, his co-workers or to Sydney Trains.”
“Merely asserting that either [him], his co-workers or the public were at risk by [him] having traces of benzoylecgonine in his system does not make it a safety risk,” the worker said.
Was it unfair dismissal?
In its decision, the FWC said that "all that the test revealed was that he had consumed cocaine at some point in the previous days. None of the experts who gave evidence suggested that Goodsell’s positive test meant any more than this."
"The taking of drugs by an employee away from work is only relevant to the employment if it has a connection to the performance of work," it said.
It said that it did not find any basis that "Goodsell attended work on 4 June 2022 under any impairment arising from his consumption of cocaine during approved leave."
"Central to this conclusion is the relatively low concentration of benzoylecgonine detected, and [expert] assessment that if cocaine had been consumed only 12 hours before testing then the dosage would have been so low that Goodsell probably would not have realised that he had done so."
"Even if the cocaine had been consumed 12 hours before the test, and even if that consumption had caused some noticeable impairment 10-12 hours before testing, the very small effects caused by such a low dosage would have long passed before Goodsell attended work and was tested," it added.
Thus, the FWC found that Goodsell had no risk of impairment at work. Consequently, it said that his dismissal was harsh and unreasonable. The Commission then ordered his reinstatement.