Drug and alcohol policies
The Fair Work Commission has proven that it will allow Companies to terminate employees for failure to comply with drug and alcohol policies. The key is that these policies must beeffectively drafted, and physical and mental capacity must be relevant to the job at hand.
In Sharp v BCS Infrastructure Support Pty Limited, Sharp returned a positive drug test for cannabis. The work performed by Sharp was the result of a contract between the employer and Qantas Airways Limited (Qantas) for the maintenance and servicing of equipment including carousels and aerobridges. The work performed by Sharp was considered to constitute “Safety Sensitive Aviation Activities” (SSAA) for the purposes of the Civil Aviation Safety Regulations 1998.
After Sharp failed the drug test, the Employer arranged a ‘show cause’ meeting and allowed Sharp the opportunity to ‘have his say’.
Sharp claimed that he was not a regular user of cannabis (or any other illegal substance) and that he had smoked a single joint that he had shared with close friends on the Saturday prior to his drug and alcohol test. He acknowledged that he had made “a serious mistake” but claimed that he did not feel impaired when he attended work.
Sharp argued that he had been unfairly dismissed because, even though he returned a positive test for cannabis, the surrounding circumstances should have been considered and as a result, his dismissal was unfair. The surrounding circumstances included the following:
- Sharp did not, and has never, knowingly used alcohol or illicit substances at work;
- Sharp has never previously tested non-negative for any prohibited substance during his employment with the Employer;
- Sharp informed his supervisor that he could test positive prior to taking the test;
- Sharp complied with the requirement to provide a sample;
- Sharp has been honest and contrite and has never sought to deny or conceal his conduct;
- Other employees of the Employer who had returned non-negative samples were not terminated;
- The Employer’s policy did not advise employees that termination would result from returning a non-negative result, and in fact prefers alternative sanctions; and
- The Employer did not comply with its own DAMP in the manner in which the testing was carried out.
- The Employer argued that the dismissal was not unfair because of the following reasons:
- The level of cannabinoids revealed by the test was so high that it represented a prima facie serious threat to the safety of workers;
- Sharp’s conduct compromised the Employer’s reputation in circumstances where the Employer already held serious concerns about its relationship with Qantas;
- Representations made by a Qantas representative to the Employer that Qantas would not be comfortable with an employee who had tested positive for drugs remaining on site;
- The high-risk nature of Sharp’s workplace;
- Sharp’s role as a team-leader responsible for other employees; and
- The risk of establishing a precedent with respect to testing positive for illegal substances if Sharp was allowed to return to the workforce.
In deciding that the dismissal was fair, the Commission found the following to be the relevant factors:
- The Commission was satisfied on the basis of the evidence before it that the reason for Sharp’s dismissal was that he returned a confirmed positive test result whilst at work.
- The surrounding circumstances listed by Sharp above were not sufficient to negate the validity of the reason for Sharp’s termination.
- Sharp was aware that the Employer considered drug and alcohol use to be serious issues. This is evidenced by his attempt to dilute the test results by consuming large quantities of water immediately prior to his drug test.
- The nature of the work undertaken by Sharp explains the seriousness with which the Employer treats the use of drugs and alcohol. It is clear that safety is a significant concern for individuals performing work such as that Sharp performed.
- Sharp’s conduct had the capacity to cause serious and imminent risk to the reputation, viability or profitability of the Employer. The Commission was satisfied that a confirmed positive test result for illegal drug use by an employee would cause serious and imminent risk to the Employer’s reputation.
- While there was some evidence to suggest that individuals who had returned non-negative results due to the consumption of prescribed medications had not been terminated, the Commission was satisfied that the circumstances of the matter before it were sufficiently distinguishable.
If you require any information about drug testing, need a policy and procedure prepared or reviewed, or if you have an employee who fails a drug test and you are not sure how to act, please contact us for assistance.