The employee worked at a mine and was primarily responsible for performing Charge-Up activities (the use of explosives for blasting in the mine). It was uncontested working in an underground mine is a hazardous work environment.

The employee was dismissed on 26 May 2017, after returning a non-negative result when completing a random drug test.

The employee admitted to smoking a joint of marijuana whilst socialising with friends on a period of leave and then privately undertaking a drug test at home prior to returning to work, which returned a negative result.

On the day after returning to work, the employee was directed to complete a random drug test. The employee did not disclose he had taken drugs. The drug test returned a non-negative result. The employee was immediately suspended from work, on full pay, pending the outcome of confirmatory results.

The specimen was sent to Racing Analytical (a National Association of Testing Authorities approved laboratory) for analysis. The non-negative result for cannabinoids was confirmed.

The employee was advised he was required to attend a meeting on 15 May 2017. In this meeting the employee was provided with a letter outlining findings of serious misconduct, including the breach of a number of policies and procedures. The employee was given the opportunity to respond and show cause as to why disciplinary action, including dismissal, should not be taken. The employee had the opportunity to respond during the meeting as well as in writing.

Having considered the employee’s responses, both written and verbal, the employer wrote to the employee noting the responses provided no exceptional circumstances or “significantly mitigating factors which would cause the [employer] to depart from the zero tolerance approach to drug and alcohol breaches”.  The employee was dismissed effective immediately and paid 5 weeks’ in lieu of notice. The employer considered the employee’s conduct justified summary dismissal, yet resolved to pay 5 week’ in lieu of notice to mitigate the effects of the dismissal.

The employee made an unfair dismissal claim arguing the employer was not entitled to rely on the test result because it failed to comply with: the manufacturer’s instructions; the applicable Australian Standards; and its own policies.

The employee also asserted: the employer’s policies and procedures failed to set a prescribed limit for screening/testing for drugs; he was not provided with a copy of the policy; and he was not given any training.

The Commission rejected the employee’s arguments. The Commission found the Code of Conduct, which stated employees are required to have a “0.00 illicit substance and Blood Alcohol Content (BAC) while at work” and “disciplinary action will be taken if an employee tests positive for illegal or prohibited substances”, had been clearly communicated to employees. Having regard to the online site induction which highlighted the employer’s zero tolerance for illicit drugs, the Commission remarked “It is abundantly clear that the [employer] had adopted a zero tolerance approach to illicit substances including cannabis.”

The Commission noted that compliance with the Australian Standard was voluntary, and that “confidence in the testing process may not be ensured” if there is a failure to comply. The Commission also noted that “the integrity of the testing process cannot be taken for granted”. The Commission considered the evidence of those collecting the employee’s urine sample as well as evidence from those holding expertise in the field. Whilst the employer did not strictly follow the manufacturer’s instructions, the Australian Standards, or its own policy, the Commission was satisfied the non-negative laboratory test result was valid.

The Commission was satisfied dismissal was not disproportionate as other employees had their employment terminated due to drug breaches and considered it was lawful and reasonable to have a zero tolerance policy in a safety critical environment.

Weighing all the factors the Commission concluded the misconduct was “at the serious end of the scale. [The employee] presented for work with detectable levels of THC in his system, in breach of a direction of the [employer] to present with zero levels of illicit substances in his system. The [employee] works in a safety critical workplace and he personally works with explosives. The [employee] was well aware of the [employer’s] policy….The [employer’s] policy is lawful and reasonable…The [employee] failed to follow a lawful and reasonable direction and is guilty of misconduct…..Having considered all of the circumstances, I am satisfied the dismissal is not disproportionate. Nor do I consider the dismissal to be otherwise harsh, unjust or unreasonable.”

Internal investigations are important for ensuring serious breaches of company policies and procedures are handled correctly.Investigations in the Workplace training will provide knowledge on what constitutes unlawful behaviours, the principles of an effective investigation and outline your role as an investigator. In addition, it is vital the correct processes are followed when contemplating disciplinary action, including the termination of employment, as under current employment legislation, costly consequences await organisations found to be terminating staff incorrectly.

Written by Benjamin Cirona

Fair Work Commission Decision [2018] FWC 594