By Mike Toten Freelance Writer

A labour hire worker was unfairly dismissed because, despite failing drug tests at work, he had used two self-test kits supplied by the host employer before coming to work, and both had recorded a negative result. However, the Fair Work Commission (FWC) halved his compensation payout because he had come to work after taking drugs two days in a row and therefore breached his employer’s policy. 


Facts of case 

The employee had self-medicated with half a marijuana joint and came to work two days in a row with tetrahydrocannabinol (THC) in his system. His employer’s alcohol and drugs policy was that employees were banned from working if they tested above zero content, and failing a test could result in dismissal.  

The employee had smoked the half-joint the night before, to try to deal with stress caused by a family situation.  He used another person’s prescription. Next morning before going to work he used a self-testing kit provided by the host employer, and that returned a negative result.  

However he was tested twice at work, and the results were non-negative the first time and negative the second. The host employer sent him home but directed him to return to work next day.  

He used no more joints overnight and passed another self-test next morning. A first test at work was recorded as negative initially (and signed off by both parties as such), but he was told the result later changed to non-negative, and the form he had signed had been altered to that result in his absence and without his knowledge, and done so after the time limit for which test results were valid. When a second test was also non-negative, he was given a “show cause” letter and eventually dismissed for breaching an employment policy by coming to work with evidence of drug use in his system. He had requested a third test, but that was denied. 

Evidence revealed that the host employer’s on-site tests had a higher threshold for non-negative results than its at-home self-test kits. So, it was possible for an employee between the two thresholds to be negative at home and non-negative at work.  

The employer claimed not to know about the difference but claimed that in any case employees had to return a score of zero, and the employee had recorded some presence of drugs in its tests. 

The employee claimed there were chain-of-custody defects in the employer’s procedure for handling the tests, and that one test he received had already been opened. 
 

Decision 

The FWC found that, while presence of drugs in his system provided a valid reason to dismiss the employee, the employer’s procedural failures made the dismissal unfair. They were: 

By providing tests with different thresholds, it “set the employee up for failure”. 

The employer directed him to work on day 1 after he notified his first self-test result. The employee was also entitled to assume he was fit for work. 

The employer did not address his criticisms of the tests and testing procedures. The FWC found several flaws in the way the at-work tests were conducted. 

The employee’s unblemished work record, personal circumstances and financial hardship were also relevant factors.  

The FWC awarded six months’ wages as compensation but then reduced the amount by 50% for misconduct in breaching his employer’s drug policy. The amount awarded was $37,222.50. 
 

What this means for employers 

If an employer allows the provision of alcohol/drug presence self-testing kits for employees as well as conducting on-site tests, the tests should measure the same things, and the results should be interpreted the same way. 

In this case, the host employer (who provided the self-test kits) and the employee’s employer used different tests with different measurement thresholds. 
 

Read the judgment 

Mr Maxwell Parks v WorkPac Pty Ltd [2025] FWC 2316 (8 August 2025)