By Mike Toten Freelance Writer

A stevedore who was dismissed for having traces of cocaine metabolites (but not actual cocaine) when tested has got his job back, after the Fair Work Commission (FWC) found several ambiguities in the employer’s drug policies and how they were implemented. However, he received no back pay for his period of unemployment, the net result being a suspension of nine months without pay.

The case was unusual because decisions that order reinstatement of an employee are fairly rare. This is because the FWC usually decides that the relationship of trust between the parties has been too badly damaged to be repairable. But not in this case.

 

Facts of case

The employee was dismissed after a random test revealed high readings for cocaine metabolites. The employer relied on two documents to justify its decision:

  • A Fit for Work statement (called a Critical Safety Commitment) that required employees to “be drug and alcohol free at work and advise of any injuries, medications or medical conditions that could impede my ability to do my job safely, before I commence work'".
  • An Alcohol and Other Drugs Policy that claimed to take a “zero tolerance” approach to drugs, but however indicated that dismissal would not automatically result from failing a test. The sanction would depend on the circumstances of each case, eg more lenient if an employee self-discloses an addiction in advance, or if a drink has been spiked.

 

The employee had started self-medicating with cocaine while recovering from a serious and painful shoulder injury, which was the subject of a workers’ compensation claim. He had used it “heavily” for three days while off work, but then took a one-day break before starting his next work shift. He claimed that he was aware of the policies, but not how they were applied, and claimed that the employer had not clearly explained how “fit for work” was defined.

Medical evidence suggested that the usage pattern above meant that the employee would have not been intoxicated or impaired at the time/date he was tested, except that there may have been some fatigue or “hangover” effects.

In 25 years of employment, he had not failed any previous drug test. The FWC noted that he had not come to work with the knowledge that non-active metabolites in his system could have exceeded the cut-off level set by the test. It further noted that the policy did not explain to employees that it tested for inactive metabolites as well as presence of drugs, so a positive or non-negative test result could still occur if an employee was recovering from being “hung over” but was not “intoxicated”.

Therefore, the FWC found that the information supplied to employees about testing was inadequate, because it did not refer to managing risks associated with “hangover” effects. 

The pain that his injury had caused to the employee had affected his mental health, which he had previously disclosed to the employer. However, the employer did not take that into account and had not offered any rehabilitation support. 

 

Decision

Taking into account the reason why the employee “failed” the test, not taking cocaine on the day of work, his past employment record, the absence of any safety risk resulting from the breach, his cooperation in the process, and the employer’s refusal to consider any sanction except dismissal, the FWC found his dismissal to be unfair and ordered his reinstatement and continuity of service. 

However, because the employee’s evidence had been inaccurate at times, it declined to award him back pay for the nine months between dismissal and reinstatement. 

 

What this means for employers

Drug and alcohol testing and employment policies are a complex issue, and employers should seek expert advice when drafting a policy.

The policy should be clear about everything that a test will measure and how the employer will interpret the results. Both must be clearly communicated to employees. It should also indicate the effects that drugs and alcohol can have, for example for how long their presence in a person’s system will last and produce a non-negative test result.

Note however that in this case the FWC found that “on balance” dismissal was unfair, after it took into account all the circumstances affecting the employee. An employee with, for example, a worse past history, or one who created a risk to safety at work, may have been less fortunate.

 

Read the judgment

Lee Witherden v DP World Sydney Limited [2025] FWC 294 (3 February 2025)