The dismissal of a haul-truck driver at the Boggabri coal mine after testing positive for methamphetamine has been upheld by Fair Work Australia (FWA).
A FWA report released last week showed an application for unfair dismissal remedy was rejected by FWA’s Commissioner Ian Cambridge, finding in favour of contractor Downer EDI Mining after hearings in September and October last year.
On April 2 2014, truck driver Tara Cunningham was found to have more than four times the cut-off figure for methamphetamine in a random site drug test, a result of 607 micrograms per litre of blood (ug/L).
Cunningham said she had been drinking excessively on the weekend of March 29/30 and that she had been the victim of a drink-spiking incident.
Separate pathology was conducted by her personal doctor on April 7, which returned a negative result.
Downer EDI submitted that Cunningham had breached a cardinal rule of the mine: “Never consume or be under the influence of alcohol or non-approved drugs in the workplace”.
Cunningham argued that there had been cases on site when employees who failed drug tests had not been dismissed in lieu of less severe disciplinary action, and that mitigating factors relating to drink-spiking should be considered, however site management decided those factors were not adequate basis for an outcome other than dismissal.
Expert medical evidence from a Dr Lewis showed it was implausible that the test reading could have been the result of a single dose administered 80 hours earlier.
It was submitted by representation for Downer EDI that the applicant’s version of events was a “fantastic assertion designed to disguise her own recreational use of methylamphetamine”.
In his conclusion Commissioner Cambridge said the dismissal was justified, and the personal circumstances of the applicant did not diminish seriousness of the workplace breach.
Cambridge also criticised the CFMEU in their representation of the applicant.
“It was highly regrettable to observe during the hearing that an organisation which apparently conducts campaigns which strongly advocate safety in the workplace, could contemplate a proposition which, in effect, would countenance a person driving a 580 tonne truck whilst having methylamphetamine in their body at a level 4 times the reportable cut-off figure,” Cambridge said.
In a statement supporting the WA Police Operation Redwater, Australian Metals and Mining Association (AMMA) CEO Steve Knott welcomed the FWA ruling, and expressed his hope for future decisions to take an unsympathetic view in relation to drugs in the workplace.
“For decades, many remote resource projects have regularly tested for drug detection. It is well understood by employees that this acts as both a deterrent and as an absolute safety measure,” Knott said.
"Unfortunately, this zero tolerance approach is often undermined by the undue interference of third parties which believe they 'know better' or argue on points of 'fitness for work', 'recreational use', or ‘level of impairment’.
“Employers must have the right to manage such safety risks and say if you touch illicit drugs, there is no place for you on our sites.”