Reinstatement win for an employee who tested positive for cannabis

A 64 year old employee with six years’ service has been awarded reinstatement by the Fair Work Commission (FWC). The FWC determined that there was no valid reason for dismissal and even if there was a valid reason, the termination of employment was still harsh given the employee’s personal and financial circumstances.

The lessons for employers from this decision are to ensure:

  • your policies are consistent;
  • that employees are trained on policies regularly; and
  • that employees understand the policies and, in particular, the consequences of breaches of the policies.

In addition, if an employer is going to oppose reinstatement in a matter before the FWC the evidence needs to go beyond a general view from management and strike at the heart of the relationship, particular any damage or impact to the employer’s reputation or employees generally.

Background

On 5 October 2018, a 64-year-old Customer Service Attendant employed by Sydney Trains was subject to a random urine drug test. He initially returned a positive reading (above 50ug/L) for cannabis metabolites. A secondary test confirmed a THCCOOH level of 78 ug/L in circumstances where the cut-off is 15 ug/L.

On 9 October 2018, the employee was suspended on pay pending an investigation of his conduct.

Following the completion of the investigation and an appeal by the employee, the termination of the employee’s employment was confirmed on 26 April 2019.

Serious misconduct

The Commission found that the employee’s conduct was not serious misconduct and, at worst, was a serious error of judgement.

This finding was based on the following:

  • the smoking of one cannabis “joint” was a one-off incident (and not habitual);
  • the incident was not reckless, deliberate or intentional;
  • the FWC did not accept that the employee deliberately failed to inform the drug tester that he had smoked cannabis the night before;
  • there was no evidence that the random drug tester, management or any other employee suspected any impairment of the employee, either on the day, or on the following two days when the employee continued to work normally, without incident;
  • there was inconsistency between the relevant policies, which may have led the employee to believe that even if he had some residual trace of cannabis, it would not be greater than 50 ug/L; and
  • the Commission accepted that if the employee had known the policy meant dismissal for any trace of cannabis in an employee’s system, he may have made a different choice when socialising the night before.

Valid reason

The Commission found that the employer’s “valid reason” suffered from two fundamental flaws:

  • the “zero tolerance” approach to drugs and alcohol in the workplace; and
  • the inconsistency of this approach to employer’s disciplinary policies and procedures, which purportedly recognised personal or mitigating circumstances when a decision was made to dismiss an employee for breach/breaches of the Drugs and Alcohol Policy.

Zero tolerance

The Commission found that there was, in fact, not “zero tolerance”, because to test positive an employee had to have a THC result over 50ug/l. This means that an employee with 49ug/l will escape detection.

The employer asserted that the “zero tolerance” approach did not mean that personal and mitigating circumstances were not taken into account.

The Commission remarked that this was “logically inconsistent” with the “zero tolerance” approach. Further, the evidence made it clear that such considerations can never sway the decision maker from a decision to dismiss.

Inconsistency

The employer attempted to argue that the “zero tolerance” drug and alcohol policy had been applied consistently since at least 2017.

Deputy President Sams said the employer could not have two policies that were inconsistent with each other and have not told employees that the “less draconian” policy would never be applied.

The employer had not:

  • communicated to its employee the true effect of the “zero tolerance” policy since 2017;
  • advised employees that anyone who is found to return a positive test for drugs or alcohol, would be dismissed; and
  • made employees aware that personal and mitigating circumstances would not be considered, if any trace of illicit drug use was detected in their systems.

In the circumstances, the FWC found there was not a valid reason for dismissal.

Other matters the Commission considered relevant

Deputy President Sams remarked that “there could hardly be a more meritorious and justified example of the ‘harshness’ component of the expression ‘harsh, unjust and unreasonable’, than the dismissal” of the employee in this case.

Of particular importance for the FWC was the employee’s openness, honesty, remorse and contrition from the outset of the investigation.

Other factors that the Commission considered were:

  • the employee’s age and difficulty in obtaining alternative employment;
  • the employee’s family and financial circumstances;
  • the employee’s 6 years’ service, including employee awards;
  • the inconsistency between the employer’s policies;
  • the failure of the employer to notify employees of the effect of the “zero tolerance” policy; and
  • evidence that prior to 2017 two employees who tested positive for drugs and alcohol were given a second chance.

Reinstatement and lost remuneration

The FWC was not satisfied that the working relationship between the employer and employee had irretrievably broken down. Particularly given that there was no evidence of any adverse impact on the employer’s reputation or damage to other employees and there was little persuasive evidence from the employer on any barriers to reinstatement.

In the FWC’s view, this meant that there was not a barrier to the employee being reinstated and the FWC made orders to that effect.

In considering lost remuneration, the FWC discounted the value by 50%. The FWC’s reasoning included that while the employee’s dismissal was unfair, his conduct was a “serious lapse of judgment”. In addition, it was to serve as a reminder of the seriousness in which the FWC views health and safety.