Is your drug and alcohol policy up to scratch?
A recent FWC decision highlights the importance of a clearly drafted and well communicated policy if that forms a basis for a dismissal.
The decision
The Full Bench of the FWC has recently upheld a decision by Deputy President Easton to reinstate a Sydney Trains employee who was dismissed for testing positive for cocaine.
The train driver was employed for 26 years and had undertaken more than 40 random drug and alcohol tests without ever testing positive.
During a week of annual leave he went out with friends and accepted an offer to try some cocaine, four days before he was due back. As luck would have it, he was randomly drug tested on his first day back and returned low traces. There was no evidence of impairment.
Sydney Trains relied upon its zero-tolerance drug and alcohol policy to dismiss the employee.
When defending the unfair dismissal claim Sydney Trains cited FWC decisions that support an employer’s decision to dismiss an employee where the employer has a zero-tolerance policy for drug use in high-risk roles, regardless of whether an employee is impaired.
Part of Sydney Trains’ issue (along with harshness having regard to the employee’s unblemished record and a lack of procedural fairness) were deficiencies in its drug and alcohol policy. Among them:
- The policy did not explain what “drug free” meant in a way that was comprehensible to the workers
- In particular, the policy failed to explain there was zero tolerance for use rather than impairment
- It did not clearly communicate the employer could dismiss in relation to the consumption of drugs if a positive result was returned, regardless of when the drug use occurs
- It was unclear how the Australian Standards (which specify cut-off limits for detection of drugs) were applied
Essentials for a zero-tolerance Drug and Alcohol policy
If you apply a zero-tolerance approach to illicit drug use, a positive result can provide a valid reason for dismissal. However, this decision means employers should be very careful about the terms of their policy, how it is communicated and ensure procedural fairness prior to dismissal.
Essentials for a drug and alcohol policy include:
- Clearly specifying that there is zero-tolerance for use rather than impairment if that is the case.
- Identification of the cut-off limits from current Australian Standards and the testing process.
- That breach of the policy may result in dismissal.
- Clear communication that can be understood by the workforce.
What should employers do?
Together with a clear policy, the FWC will also require a careful consideration of the circumstances of the positive test, the employee’s history, the nature of the role and whether a discretion not to dismiss ought to have been exercised.
A different approach is required for medicinal cannabis – further information is available in our article on that topic here.
The Batch Mewing Lawyers Employment & Safety team has template drug & alcohol policies current with Australian law and Australian Standards and advises employers on their risks of dismissal for drug use.
Please contact us if you need any assistance.
