Worker sacked for failing drug test

Worker sacked for failing drug test

An employer was entitled to sack rather than warn a worker for failing a drug test because he knowingly attended work while unfit, the Fair Work Commission has found.

In Melbourne, Commissioner Julius Roe found the worker also “unreasonably sought to avoid taking responsibility for the positive methylamphetamine test”, and rejected his unfair dismissal claim.

The North West Crewing Pty Ltd deckhand failed a workplace drug test four days after attending a party in Bali in July 2015.

His employer sacked him for having levels of methylamphetamine in his urine at nearly 10 times the cut off limit underAS/NZS 4308:2008, breaching its fitness for duty policies, knowingly attending work while drug-affected and admitting to abusing prescription medication.

The worker claimed unfair dismissal, arguing that while “something might have happened” at the Bali party that resulted in the positive test, he didn’t knowingly consume methylamphetamine.

He also argued this was his first breach of the employer’s fitness for work policy, which stated that a first offence warranted a first and final warning.

The employer argued that the dismissal was fair because the worker knew he was unfit when he attended work, and would have been aware of its widely publicised drug and alcohol and fitness for work policies.

Commissioner Roe found there was a valid reason to sack the worker, but not solely because he returned a positive drug test.

The employer’s policy, he said, stated that a first positive test should result in a warning – and not dismissal – because:

  • the test doesn’t measure impairment;
  • it is reasonable for workers to be given an opportunity to seek rehabilitation, counselling or change their behaviour; and
  • it isn’t possible to completely eliminate the risk of employees not being fully fit at work, as an employer “cannot expect to have a workforce which consists only of model workers”.

“Workers from time to time may be stressed, tired, affected by illness or disability or by prior consumption of alcohol, drugs or prescription medicines,” the Commissioner said.

“A decision to give an employee a second chance will generally not be an unacceptable risk in this context.”

Commissioner Roe found, however, that the worker admitted in his show cause meeting to taking extra prescription tablets when socialising, which “raises concerns as to fitness for work given that the prescription medicine is also taken whilst at work”.

He also found the worker “would either have known that he took [methylamphetamine] or that he had been given the drug without his knowledge”.

“[The worker] would have been significantly affected at the time of taking the drug given the level of methylamphetamine required to sustain a high concentration in his urine four days later,” he said in rejecting his claim.