The case was lodged against Sydney Trains after the worker was terminated for the positive drug test, which was a breach of the employer’s alcohol and drug policy.

The employee was subject to a random drug test on his first day back from leave on 4 June 2022. His drug test returned a positive reading for a cocaine metabolite.

During the investigation process, the employee admitted to using cocaine on 31 May 2022. He was suspended from work on 8 June pending a formal investigation and on 17 June was sent a notification of disciplinary investigation and request to respond to these allegations.

On 21 July he was sent a show cause letter advising that the allegations were proven, and that his employer’s decision was to terminate the employment. Sydney Trains did not find the employee’s response to the show cause letter satisfactory and terminated his employment on 23 September.

The worker had an otherwise unblemished career history of over 26 years and showed remorse during the investigation process.

Decision

The FWC was satisfied that breaching the Sydney Trains alcohol and drug policy was valid reason for dismissal, but the employer failed to consider other mitigating factors including the employee’s remorse, long service and employment record.

The employer also failed to prove that employee’s consumption of drugs outside of work caused any impairment to their ability to perform their role. The FWC added that Sydney Trains may have had a “closed mind” when deciding the fate of the employee’s future and criticised their failure to consider options other than dismissal.

For these reasons, the FWC found this dismissal to be harsh, unjust or unreasonable and therefore found in the employee’s favour.

Learnings for business

This case is a timely reminder for employers to ensure their workplace policies have been appropriately drafted, introduced and implemented in the workplace, and that disciplinary processes and their outcomes are fair, reasonable and take all relevant matters into account.

The takeaway for employers is that a “blanket” zero-tolerance approach to drugs and alcohol in the workplace will often be unreasonable, and that all circumstances surrounding a positive drug or alcohol test should be regarded.

This case also serves as a reminder of the importance of not pre-judging disciplinary matters or creating the perception of prejudgment.

It is critical that employers consider mitigating factors when considering termination of employment, and this consideration should be made clear to the impacted employee.

How the Victorian Chamber can assist

The Victorian Chamber’s Workplace Relations team are experts in handling disciplinary and termination matters and can guide you through these processes with as little risk as possible for your business.

We can also help you draft and implement a drug and alcohol policy in your business, which can be complex and can trigger a consultation obligation under a Modern Award or Enterprise Agreement.

For assistance with disciplinary matters, or with any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 03 8662 5222.