By Mike Toten Freelance Writer

A waterfront employee who tested positive three times for amphetamine and methamphetamine was validly dismissed for misconduct, even though the employer mishandled its testing process. The Fair Work Commission (FWC) described its approach to testing employees as “incompatible”.

FACTS OF CASE

The employee provided non-negative oral fluid samples when tested twice within the same month and received a final warning. About a year later, when tested again, he produced a negative result after having taken a pill “of unknown contents” the morning before. When the employer sent the sample for confirmatory testing, it revealed another positive result for amphetamine and methamphetamine. It then dismissed the employee, claiming he had breached several workplace safety and conduct policies, including one that required employees to be drug and alcohol-free at all times.

The employer emphasised that work in the waterfront industry was considered “hazardous”.

The employee provided the following defences:

  • The relevant Australian Standard stated that a negative test result such as the third one was “conclusive” and did not require being sent for confirmation.
  • The employer’s policy only allowed it to initiate a “show cause” process if an employee produced three positive test results within one year. The third test was done 54 weeks after the first one, which meant the first test should be disregarded.
  • His manager had “interjected” himself into the process by choosing to send the third result for confirmation in the hope it would come back positive. This meant that the testing process was not “random” as the employer had claimed. 
  • The employer’s policy stated it could only send positive test results for confirmation.

The union representing the employee claimed that the employer had treated the employee as if the policy was “zero tolerance”, but another employee had tested positive about 50 times over 25 years and never received more than warnings. He noted the inconsistency between claiming to have a “zero tolerance” policy and allowing an employee who had failed two tests within a year to continue working after receiving a warning. He claimed that the employer’s policy was in fact the most tolerant (of drug-taking) in the waterfront industry.

The FWC agreed in part, finding that the employer had failed to comply with its own policies and procedures (including by sending the third sample for confirmation testing), and that the policies and procedures were incompatible with each other. Therefore, the employee was entitled to be treated according to the most generous (to employees) of them.

DECISION

The FWC found that the gravity of the employee’s misconduct overrode the employer’s policy/procedure breaches, so his dismissal was justified.

The reason for dismissal, however, was not for one breach of the drug and alcohol procedure, but because, while still in the timeframe of a final warning, he tested positive for amphetamine and methamphetamine for a third time. The wording of the policy meant that the warning had not lapsed.

WHAT THIS MEANS FOR EMPLOYERS

Where an employer has policies that cover workplace health and safety, drug/alcohol testing and other employment-related issues, those policies must be applied consistently to all employees. Where they establish procedures to follow, the employer must of course comply with the procedures each time.

Where there are multiple policies on-site, check all of them to ensure that no provisions in one contradict those in others.

READ THE JUDGMENT

Liam Hawken v Patrick Stevedores Holdings Pty Limited [2024] FWC 1595 (19 June 2024)