Organic panic: Employer dismisses long standing employee for breaching drug policy

Although circumstances may be unique to each case, generally, workplace policies will provide employers with grounds for termination when a significant breach has occurred.

In Hancock v DP World Brisbane Pty Ltd [2022] FWC 1406, the Fair Work Commission (FWC) upheld the dismissal of a long serving employee who breached the Alcohol and Other Drug Policy (AOD Policy) by testing positive to THC during work hours.

The employee had been employed by DP World Brisbane Pty Ltd (the Employer) for 25 years. At the time of the dismissal, he was employed as a toggle operator. The role required the employee to patrol the trucks coming in and out, load and unload containers and oversee and co-ordinate the straddle carriers to unload the vessels and stack containers.

In August 2021, the employee was randomly selected for a drug test in accordance with the Employer’s AOD Policy and returned a positive test. Secondary testing conducted confirmed the presence of high range THC in the employee’s system.

The Employer commenced a disciplinary process against the employee for breaching the AOD Policy. The employee confirmed that he was aware of the policy but denied that he was impaired and expressed surprised by the positive results given he had only smoked a “small joint” the night before. The employee also submitted that he was battling serious mental health conditions and thought the marijuana would help him relax and sleep.

The Employer did not accept the employee’s responses and terminated his employment for serious misconduct.

The employee subsequently lodged an application for an unfair dismissal remedy.

Before the FWC, the employee submitted that there was no valid reason for his dismissal and the termination of his employment was disproportionate to the gravity of his conduct.

The employee claimed that the AOD Policy was lawful, but unreasonable as it failed to clearly outline that a breach would likely result in termination. The employee argued that his positive test did not provide the Employer with a valid reason to terminate, given a “zero tolerance” to drugs and alcohol had not been conveyed.

Further, the employee claimed that because his role was not safety-critical due to it being office based and clerical, a breach of the AOD policy on a single occasion did not constitute a valid reason for dismissal. The employee maintained that he was fit for work and not impaired in any way and that a positive test for THC was of no use in determining whether an employee was fit to perform their duties.

The Employer maintained that the employee’s misconduct amounted to serious misconduct because of his failure to comply with the AOD Policy.

The Employer submitted that the AOD Policy which required employees not to attend work with drugs in their system, was lawful and reasonable and that the terms of the policy had put the employee on notice that termination was a potential outcome, if breached.

The Employer noted that the employee’s role included operating and manoeuvring automated stacking cranes and heavy equipment and therefore, was safety critical.

The Employer refuted the employee’s submission that he was fit for work and not impaired, and submitted that whether the employee was impaired or not was irrelevant to the decision to terminate the employee’s employment. The employee’s employment was terminated for significantly breaching the AOD Policy by attending for work with drugs in his system.

The FWC found that the employee handbook made the possibility of termination of employment very clear as a potential consequence of attending work under the influence of drugs and found that the employee was aware of this. Additionally, bulletins were posted and made accessible to the employee which emphasised the Employer’s “zero tolerance” stance against drugs and alcohol.

In regards to the employee’s role, the FWC found that while the role was predominantly clerical and office based in nature, he could have been assigned tasks to perform during his shift which were safety critical. Additionally, the FWC was satisfied that there were a range of risks associated with the employee’s duties which supported a finding that the role was serious and safety critical in nature.

The FWC found that the AOD Policy was lawful and reasonable given the safety critical nature of the employee’s role. Given this, and as the employee recorded a high range reading while in attendance at work, the FWC considered the employee’s breach of the AOD Policy to be significant. Accordingly, the FWC was satisfied that there was a valid reason for the employee’s dismissal.

The FWC was also satisfied that the employee’s dismissal was not disproportionate or harsh as it found that the employee’s compliance with the AOD Policy was a fundamental requirement of his employment.

The FWC found that in the circumstances, the employee’s dismissal was not harsh, unjust or unreasonable and dismissed the employee’s unfair dismissal application.

Lessons for employers

Drug and alcohol policies should be tailored to workplaces and the consequences of breaching policies should be clearly communicated, particularly if a zero-tolerance approach is adopted.

It is best practice for employers to ensure that workplace policies are distributed, read and acknowledged by employees on a regular basis.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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