Opinion: Fair Work decision on employee termination shows hardline on drugs

Sarah Jones of Hicksons Lawyers discusses a recent case citing the importance of a transparent drug and alcohol policy, as well as the importance of sticking to it.

Balancing work health and safety (WHS) responsibilities and employment relations matters in the mining industry continues to pose challenges for Australian businesses, with drug and alcohol testing a regular battleground.

A recent decision shows that employees who play Russian roulette with testing standards are likely to find little sympathy with the Fair Work Commission. The case sees the commission again putting safety above a strict interpretation of policy in upholding the dismissal of a mining worker who failed two drug tests and was more concerned about beating the system than ensuring he was safe to work[1].

Eather was employed by Whitehaven Coal as an underground production mine worker and was summarily dismissed in April 2017 for serious misconduct after a positive test result for THC (cannabis). Eather commenced unfair dismissal proceedings.

Unfortunately for Eather this was his second breach of the mine’s drug and alcohol policy, having returned a non-negative result for THC following a random drug test in March 2017. The lab results from this test showed a positive result of 65 micrograms per litre (µg/L). During the hearing, the employee contested that he was told that the cut-off under the mine’s Alcohol and other Drugs Standard (the Company Standard), by reference to the Australian Standard, was 15 µg/L and he had three weeks to return a negative result.

Under the company standard, where an employee provides a positive sample using the onsite screening cup test (above 50 µg/L), the sample was sent to the lab for more accurate testing. The employee then has three weeks in which to provide a negative result (less than 15 µg/L) before being able to return to work. Accordingly, unlike some mines, Whitehaven does not have a zero tolerance policy.

Company policy allows any employee who feels they may be above the relevant level to self-test and then not present for work, but once at work can be subject to a random test or be tested if a supervisor or another employee suspects they may be under the influence of drugs or alcohol.

The 50µg/L cut-off level was used for on-site testing as the on-site technology only detected results above 50 µg/L. The mine gave evidence that if there was a non-lab measure to test for the 15 µg/L cut-off they would use it, but it was not practical to send every result to the lab.

In this case, the employee did a further self-test on in March 2017 which returned a non-negative result and when tested by the lab recorded a 48 µg/L result (less than the trigger for onsite testing to be referred to the lab for further analysis).

The employee returned to work three weeks after his first positive result and undertook a further test. He was told that if this produced a negative result he could return to work but, if not, further disciplinary action would be taken which could include termination of his employment. This verbal advice was confirmed in a written warning letter.

This sample returned a result of 18 µg/L. At a subsequent meeting in April 2017 the employee claimed he had been told that if he passed the screening cup test he could return to work. The mine denied this.

The employee also argued that his result was only a bit over 15 µg/L and he had six kids and could not afford to lose his job. The employer did not accept his response and Eather’s employment was terminated for serious and wilful misconduct.

The employee maintained that he had smoked two joints five days before his first test, and that prior to this he had last used marijuana over 10 years ago. He denied any further use after this occurrence, but said he had done lots of exercise and had drunk lots of water to bring his level down.

The employee maintained at the hearing that he had used the marijuana in “desperation” because he was having problems with his neck. This was not raised in any of the meetings or conversations with the mine’s representatives nor in any statements prepared prior to the hearing.

The employee had not self-tested prior to attending work on the days following smoking the joints. When asked why not he said he did not know he would go over 50 µg/L and believed he would pass the screening cup test.

Deputy President Sams, who heard the matter, was satisfied that the employee had breached the Company Standard and that this constituted a valid reason for his dismissal.

He was satisfied that the employee knew and understood the terms of the company standard and that although it did not specifically refer to the 15 µg/L cut-off, that the employee knew this was the cut-off that would apply to the final test.

He further held that even if the employee didn’t know about the 15 µg/L cut-off this wouldn’t be relevant:

“The applicant was taking an enormous risk in trying to beat the system whether the level was 15 or 50 µg/L.”

The employee’s focus on this evidence as to the required level “was to deflect attention from the very serious breach of the Company’s drug and alcohol policy, which is directly related to ensuring a safe work environment in a safety critical industry”.

The commission noted that the employee did not help his case by showing no remorse or insight into the magnitude of his conduct or the serious risk he posed to himself and his fellow employees.

Lessons for employers

Employers in safety critical workplaces should have a drug and alcohol policy (and most do). These policies should:

  •  be unambiguous and be provided to employees backed up by regular training
  • be implemented fairly with clear information provided as to the consequences for non-compliance
  • be based upon a clear rationale that its purpose is to ensure the health and safety of all employees
  • provide employees with opportunities to self-test and not report for work if under the influence and provide counselling or other support to employees with issues.

Whitehaven may be reviewing its policy in light of this decision to ensure it makes the required cut-offs clearer although it is comforting that the FWC has again put safety above strict policy interpretation.

[1] Eather v Whitehaven Coal Limited t/as Narrabri Coal Operations [2018] FWC 250: https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc250.htm