Many employers implement drug and alcohol policies to help ensure a safe and productive work environment. While breaching such policies can often provide grounds for dismissal, a recent decision of the Fair Work Commission (FWC) serves as a reminder that context and fairness must also be considered.
In Witherden v DP World Sydney Limited, an employee returned to work following a shoulder injury and was required to undergo a routine drug test. Although the test returned a negative result for active cocaine, it detected cocaine metabolites, indicating prior use.
The employee admitted to using cocaine approximately 24 hours before his shift, citing mental health struggles related to his injury. He acknowledged the mistake, had already sought counselling, and claimed he felt normal upon waking for work. He was unaware the substance could still be detected in his system.
The employer, while sympathetic to his circumstances, considered his conduct a serious breach of the policy, which prohibited a positive result for drug metabolites above Australian standards. The employee was summarily dismissed for serious misconduct.
The employee brought an unfair dismissal claim, arguing the termination was harsh due to:
- His long and unblemished service record;
- His age and the potential impact of dismissal on his future employment prospects;
- The absence of any evidence he was impaired at work;
- The employer’s failure to consider alternatives to dismissal, such as rehabilitation.
Expert evidence presented by the employee indicated the active effects of cocaine typically wear off within 90 minutes. While the employer countered with evidence suggesting residual fatigue and restlessness could follow cocaine use, there was no proof that the employee was impaired at the time he reported for duty.
FWC Findings
The Commission accepted that a breach of the policy was a valid reason for dismissal. However, it ultimately found the dismissal to be harsh and unreasonable, for several reasons:
- There was no evidence the employee was impaired at work.
- The employer’s policy lacked clarity on how long drug metabolites may remain detectable after use.
- The policy did not sufficiently explain the distinction between intoxication and residual impairment or a “hangover” effect.
- The employer had discretion under the policy to consider rehabilitation or alternative disciplinary measures, which it failed to explore.
The FWC emphasised that a single breach of a drug and alcohol policy does not automatically justify summary dismissal, especially where there is no evidence of impairment or risk, and where an employee is otherwise of good character and open about their circumstances.
As a result, the FWC ordered that the employee be reinstated.
Key Takeaways for Employers
Clear and comprehensive policies are essential:
- Ensure your drug and alcohol policy clearly outlines the implications of drug metabolite detection, residual impairment, and what constitutes “fitness for work.”
- Reinforce education and support: A policy should not only communicate consequences but also promote support pathways, especially where mental health or substance dependency may be a factor.
Consider proportionality and alternatives: Before proceeding with dismissal, employers should assess the specific circumstances, including the employee’s record, evidence of impairment, and whether rehabilitation might be more appropriate.
