Unfair dismissal? Worker says he knew test would be positive, so he went home
The Fair Work Commission (FWC) recently dealt with a case involving a worker who was dismissed for refusing to undergo a random drug and alcohol test.
The case highlighted the importance of workplace drug and alcohol policies and the consequences of non-compliance.
The decision revolved around a confectioner at a chocolate factory who left work after being selected for a random drug test, admitting he had used marijuana the night before.
This led to his dismissal, which he then challenged as unfair. The case delved into issues of workplace safety, procedural fairness, and the implementation of drug and alcohol policies.
Background of the case
The worker had been employed at the chocolate factory for approximately 7 years when he was selected for a random drug and alcohol test on October 12, 2023. Upon being informed of the test, he sent a text message to his supervisor stating:
"gonna have to go home sick, hate to do it. But had a few things I shouldn't have last night. I know it'll come up on the test so [I'll] be told to go home either way. I feel fine and capable enough to do my job though, no issues there just know it'll come back positive"
The worker then left the workplace without taking the test. This action led to an investigation by the employer and ultimately resulted in the worker's dismissal on December 1, 2023.
Employer's drug and alcohol policy
The employer had implemented a drug and alcohol policy in 2019 with the aim of reducing health and safety risks in the workplace.
The policy included provisions for random drug and alcohol testing and stated that breaches could result in disciplinary action, up to and including termination of employment.
The policy emphasised the importance of maintaining a safe workplace, stating:
"We are committed to providing a safe, healthy and productive workplace for our workers through the establishment and maintenance of a workplace that is free from hazards and/or risks arising from the use of drugs and/or alcohol and to ensure our products are safe and of the highest quality for our consumers."
Parties’ arguments
The worker argued that his dismissal was unfair for several reasons. He claimed that he had concerns about the privacy of his test results due to a recent data breach at the company. However, this concern was not raised during the disciplinary process leading up to his dismissal.
The worker also provided inconsistent explanations for his marijuana use, ranging from celebratory reasons to using it to help with sleep issues. He expressed remorse in his response to the show cause letter, stating:
"I would like to acknowledge that I was a recreational drug user, but with the advent of random testing on-site I made a conscious effort to reduce my intake to ensure compliance to the Drug and Alcohol Policy. I have been dealing with Issues and momentarily lapsed and slipped back into my old ways, but I am demonstrating that I can reform and continue to be an excellent worker following the [employer’s] values."
On the other hand, the employer argued that the worker's actions constituted serious misconduct. They emphasised the importance of the drug and alcohol policy in maintaining workplace safety, particularly given the high-risk environment of the chocolate factory.
The employer followed a structured process in dealing with the incident. First, the worker was suspended with pay pending an investigation. A disciplinary meeting was then held where the worker was given an opportunity to explain his actions.
Following this, a show cause letter was sent to the worker outlining the allegations and potential consequences. The worker was given an opportunity to respond to the show cause letter. After considering the worker's response, the decision was made to terminate his employment.
The Commission's considerations
In assessing whether the dismissal was harsh, unjust or unreasonable, the Commission considered several factors as outlined in section 387 of the Fair Work Act. These included whether there was a valid reason for the dismissal, whether the worker was notified of that reason, and whether the worker was given an opportunity to respond.
The Commission also considered any unreasonable refusal by the employer to allow a support person, whether warnings about unsatisfactory performance were given (if relevant), the impact of the size of the employer's enterprise on the dismissal procedure, the impact of the absence of dedicated HR management specialists on the procedure, and any other relevant matters.
After considering all the evidence and arguments, the Commission ultimately decided that the dismissal was not harsh, unjust or unreasonable. The Commission stated:
"The action of the [worker] was wilful and deliberate. It was serious misconduct. He was notified of the reason for dismissal and given an opportunity to respond. There was procedural fairness afforded him by the [employer]."
The Commission acknowledged that some factors weighed in the worker's favour, such as his length of service and the impact of the dismissal on his future employment prospects. However, these were not sufficient to outweigh the seriousness of the misconduct:
"While some of the matters considered under (h) weigh in favour of the [worker], taking into account all of the factors, I am not satisfied that the dismissal was harsh, unjust or unreasonable."
The Commission emphasised the importance of workplace safety and the validity of the employer's drug and alcohol policy:
"The [employer's] drug and alcohol policy is necessary given the high-risk environment in which the [worker] worked. It is also reasonable that random drug and alcohol tests are a feature of that policy, and it is reasonable to expect that employees who are requested to undertake a random test, absent some compelling reason as to why they cannot or will not submit to the test, comply with that request."
This case highlights several important considerations for HR professionals and employers. It underscores the importance of having a clear and well-communicated drug and alcohol policy, and the need for consistent application of such policies.
