The Fair Work Commission (“FWC“) recently handed down a decision finding that Sydney Trains’ dismissal of an employee because of a positive drug test result was harsh, unjust and unreasonable and therefore unfair. The decision is a reminder that employers need more than just a zero tolerance Drug and Alcohol Policy to be able to terminate an employee due to a positive test result, and successfully defend against unfair dismissal claims.

Background facts

The FWC accepted that:

• the employee took cocaine while on leave 4 days before returning to work;
• the employer had a valid reason to dismiss the employee for testing positive on the drug test;
• the employee had a lengthy and unblemished employment history over 26 years (including passing over 40 random drug and alcohol tests previously);
• the employee cooperated with Sydney Trains’ investigation;
• the employee was remorseful and unconditionally accepted responsibility for his actions;
• nobody from Sydney Trains asked to meet with the employee to “eyeball him and test the genuineness of his remorse or regret”;
• no internal enquiries were made about the employee’s character, truthfulness or actual likelihood that he might attend work impaired by drugs or alcohol in the future;
• there was an absence of any risk that the employee was impaired when he attended for work;
• in the disciplinary process the employer’s mind was closed to the employee continuing in employment;
• the employer did not provide adequate information to explain to employees the effect of the Drug and Alcohol Policy; and
• the employer failed to consider any options other than dismissal.

Risk of impairment

Importantly, the FWC noted that there can be difficulty with identifying and proving impairment. As such, if there is a risk that a worker might attend the workplace impaired by drugs, then testing for usage rather than impairment is more likely to be fair and reasonable. If a worker fails a test, and the possibility or risk that the worker was impaired when they took the test cannot be eliminated, it is prima facie fair and reasonable that the employer takes strong action including dismissal.

While Sydney Trains was not required to evidence that the employee was impaired, it was required to establish that there was a risk that the employee was impaired at work. Sydney Trains was not able to establish that there was any risk that the employee had attended work impaired. The expert witness evidence which was accepted by the FWC was that the concentration which tested positive was “low” and that the employee was tested “near the end of the process of eliminating the benzoylecgonine from his system.” The expert witness also assessed that “if cocaine had been consumed only 12 hours before testing then the dosage would have been so low that [the employee] 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 [the employee] attended work and was tested.”

These findings reinforce that employers should consider closely whether a positive test result is able to provide any indication of impairment or the amount of time that has elapsed since the consumption of the drug. Blood alcohol readings, which have a level of accepted impairment at 0.05 should be interpreted differently from some drug tests, which identify a sensitivity level at which the test can correctly identify past usage but does not indicate impairment. In house health and medical officers should consulted for advice and should also be consulted in the implementation of any Drug and Alcohol Policy.

Information provided to employees needs to be clear about testing for use or impairment

The decision also noted that Sydney Trains should have make it clear to employees about its testing being for use rather than for impairment. The FWC found that it was not clear to employees that Sydney Trains was applying its Drug and Alcohol Policy in the same was that sports administrator, which sanctions anyone who consumes drugs at any time (inside or outside of work).

The FWC was particularly critical of Sydney Trains on this point because this issue had been raised by the FWC in an earlier unfair dismissal case which involved the same Drug and Alcohol Policy.

It was also noted by the FWC that it was extraordinary that the Sydney Trains Chief Health Officer was not consulted when its Drug and Alcohol Policy was implemented nor when it was reviewed, which was even more extraordinary since that review was conducted after the earlier FWC decision which criticised Sydney Trains.

Other matters

Some of the other matters which led to the FWC finding the dismissal was unfair are also useful reminders about how to conduct processes leading up to termination. The FWC’s finding that Sydney Trains did not have an open mind was based on a finding of the evidence of one of the panel members which “referred to four particular matters that a reasonable person would regard as points in the employee’s favour.” The Commission found a way to see each point as a positive reason to dismiss the employee and did not have an open mind to any other option aside from dismissal. As such, employers should keep an open mind during any show cause process to consider the specific circumstances of the individual employee and the misconduct committed.

Sydney Trains also was found not to have considered any other options other than dismissal, even though the employee indicated that he was willing to attending any courses or further assistance and submit to any targeted testing. Against the background of the employee’s willingness to partake in other courses, the FWC considered the cooperative approach of Sydney Trains towards workers who self-declare that they have a problem with drugs and alcohol. On this basis, the FWC found that the failure to consider alternative arrangements supported the conclusion that the dismissal was harsh and unreasonable. Where employers have cooperative approaches under their drug and alcohol policies for employees that self-declare, they should also consider these options for employees who are remorseful and do not have a risk of attending for work impaired.

Michael Nguyen, Senior Associate