A dump truck driver’s unfair dismissal claim was rejected by the
Fair Work Commission (FWC) after she was sacked for testing positive for methamphetamine use, with test results showing she was four times over the standard cut-off.
Tara Leah Cunningham denied taking the drug and claimed that the positive test was a consequence of her drink being spiked during a night out.
Cunningham had returned to her job at Downer EDI after a rostered break which lasted several days.
Prior to starting her shift, Cunningham was required by her employer to undertake a random drug test – this was in accordance with the organisation’s alcohol and drug management procedures. Cunningham’s sample contained traces of methamphetamine at four times the cut-off figure.
The week after the test, Cunningham was given an opportunity to explain whether there was a reasonable explanation for the presence of the drug in her system. She asserted that she had been the victim of drink spiking, but could not identify the culprit.
The union officer argued Downer therefore did not have a valid reason for her dismissal and criticised the company’s decision to backdate Cunningham’s dismissal.
Cunningham was represented during the hearing by a legal officer from the Construction, Forestry, Mining and Energy Union (CFMU), who told the FWC that Cunningham had felt well when she returned to work, and not under the influence of any substance.
The officer argued that because of this, Downer had no valid reason for Cunningham’s dismissal.
Countering this, Downer submitted evidence gained from a medical practitioner, showing that the levels of the drug found in Cunningham’s body could not have been the result of a single dose administered approximately 80 hours earlier.
Downer also pointed out that it had a zero-tolerance drug policy, which had “critical safety implications for the welfare of all those who work at the mine”.
Commissioner Ian Cambridge found that due to the excessive levels of methamphetamine found in Cunningham’s test, her dismissal was justifiable, validating as her breach of Downer’s drug and alcohol policy as serious misconduct.
“This test result would of itself, provide valid reason for the employer to terminate the employment of the applicant,” said Cambridge. “This test result was appropriately treated as a prima facie serious risk to the safety of fellow workers.”
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