Many employers have drug and alcohol policies in operation in their workplace to ensure a safe and productive environment. These policies outline testing guidelines, sanctions for non-compliance, off duty use of prohibited substances, the handling of positive results and policy breaches.
But what happens if an employee can be dismissed due to a positive drug test, even if he/she does not show any signs of obvious impairment?
In a recent Fair Work Commission ( FWC) Full Bench decision of Sydney Trains V Reece Goodsell the Commission learnt that a Sydney Trains employee of 26 years’ service was dismissed for a positive test of cocaine metabolite benzoylecgonine after returning from eight days of annual leave.
The employee was a Work Group Leader with a good work history and no prior disciplinary matters. The employee admitted that whilst he was on annual leave (four (4) days prior to being tested ) he ingested cocaine . The evidence adduced was that the employee appeared unaffected by any banned substance during the test and that he felt completely normal.
The drug test showed the employee to have a cocaine metabolite benzoylecgonine 56% higher than the Australian Standard’s cut off level. Sydney Trains drug and alcohol free workplace policy requires a test result below the Australian Standard cut off and so in reliance upon their policy Sydney Trains terminated the employee.
The employee brought an action against Sydney Trains in the FWC alleging that he had been unfairly dismissed because was not actually impaired. He sought reinstatement to his former position.
The Initial decision of the FWC agreed with the employee’s position. It found the dismissal was harsh, unjust and unreasonable based on mitigating factors. and ordered Goodsell be reinstated to his former position. Sydney Trains appealed.
On appeal the FWC Full Bench made it clear that for an employer to establish a fair dismissal due to failing a drug test does not depend on establishing that there was a risk of impairment. It found that an employee who fails a drug test in breach of a policy, regardless of impairment, can present a valid reason for dismissal.
Notwithstanding that principle the Full Bench found that the mitigating factors favouring the dismissed employee – including expert testimony that the employee would not have been impaired, his length of employment , his 40 clear drug and alcohol tests, that it was a one-off incident, he did not understand that he could still test positive some days after taking the substance, the financial impact on his family, his remorse and his willingness to engage in future testing regimes – was enough to make finding that the termination was unfair and that he be reinstated.
For employers, this decision highlights the need for employers when developing and implementing a drug and alcohol policy to comprehensively consider mitigating factors presented by the employee, including the employee’s length of service and disciplinary record, he or she’s role in the organisation and the extent of the drug use and its impairment.
