A recent case before the full bench of the Fair Work Commission has reversed a previous position and now clarifies that employers no longer need to prove impairment by drugs and alcohol for a dismissal due to drug and alcohol policy breaches to be valid, though they do need to consider impairment in the context of the overall breach of policy in determining how to respond.
Case Review – Initial unfair dismissal case
The case is a long running one involving a Sydney Trains worker that failed a random drug test on the first day back from annual leave, returning a positive result for cocaine (the cocaine metabolite benzoylecgonine).
Following the result the worker was terminated as part of a zero tolerance approach.
The worker admitted that he “accepted an offer to try some cocaine” four days before the test, while he was on annual leave.
Evidence provided as part of the initial unfair dismissal case showed that the drug testing officer reported the worker did not appear to be “impaired” and appeared “completely normal” which was consistent with the workers own assessment at the time of “feeling normal”.
The evidence also showed that the concentration of the cocaine metabolite in the workers blood was 264ug/L, which was above the Australian Standard for a positive test (150ug/L) but well below what pharmacology Professor Robert Weatherby testified was consistent with recent consumption (9,000 ug/L) or immediate consumption (70,000 ug/L).
In issuing the initial decision to reinstate the worker, with backpay for the termination period (less a 20% pay discount for the positive test) Fair Work Commission Deputy President Easton noted at the time that while there was a valid reason for the dismissal of the worker, the lack of risk, the lack of clarity around the operation of the drug and alcohol policy and the focus on a positive test rather than the actual impairment of the employee made the dismissal unfair.
DP Easton went on to state that “Frankly, in [this] case Sydney Trains does not appear to have exercised any caution and instead blindly accepted the positive test result to be proof of a risk that [the worker] attended work under an impairment”.
DP Easton summarised the reason for finding the dismissal unfair and for determining the reinstatement and backpay; “The breach of the D&A policy was a valid reason for dismissal, what made [this] dismissal unfair were the other mitigating factors that applied…that were either ignored or disregarded by Sydney Trains…; a long employment history without blemish, the absence of any evidence of impairment at the time of testing, the apparent zero tolerance/one size fits all dismissal policy, remorse, the lack of clear information provided to employees about the policy, and so on”.
The dismissal was found to be unfair and the employee was reinstated.
Case Review – Appeal
Sydney Trains appealed the decision to the full bench of the Fair Work Commission.
The finding of the appeal was that there is not necessarily a need for the employer to prove impairment for any business response, including termination, to be fair.
“To the contrary, those cases all make clear that the fact that an employee attends for work and returns a positive test for a prohibited substance, may of itself, constitute a valid reason for dismissal for the purposes of s387(a) of the Act.”
“Accordingly, the task of assessing whether a dismissal is unfair and the selection of remedies, involves broad evaluation.”
“A finding as to whether a particular employee dismissed for breaching a drug and alcohol policy was or was not impaired at work, may be relevant to the question of whether a dismissal is unfair but a conclusion that a dismissal is not unfair does not require a finding that there was a risk of impairment.”
The bench said that even where an employer had a valid reason under s387(a) for dismissing a worker for breaching a drug and alcohol policy, “it may be reasonably open to the Commission to find that in all the circumstances of a particular case, the dismissal was unfair, when other matters in s387 are considered and weighed, including mitigating factors in s387(h)”.
Ultimately the full bench concluded that while DP Easton was wrong to state that the employer MUST prove impairment in order for a drug and alcohol dismissal to be considered fair, in this particular case that incorrect statement did not, once all other items in this case were considered, change the outcome – in this case the dismissal was still unfair.
Learnings for all businesses
“It is tempting for businesses to simplify responses to drug and alcohol use at work, but it is important to understand that a strong commitment to a safe workplace and a ‘vision’ of a ‘drug-free’ workplace is not an excuse for the business to stray from the procedural fairness elements that apply to all policies”, explains ACAPMAs Elisha Radwanowski.
“But this, and other recent cases, make it very clear that a drug and alcohol policy must comply with the standards of all policies. In any dispute the first question will be, did the policy explain to the employee what a breach looks like. In this case it did in an oblique way, in that it ‘called up’ the Australian Standard for testing for the presence of cocaine use in the previous 7 days. However the utility of this for an employee is going to be a point of contention as it was here. Not only would the employee have to pay to access the Australian Standard they would also need to be able to interpret this Standard and conduct their own testing to ‘ensure’ compliance”, continues Elisha.
The bench members said an appropriate “intelligible explanation” to workers should discuss, at the very least:
- details of the prohibited drugs covered by the policy, and minimum cut-off levels;
- that testing shows drug use rather than impairment; and
- the existence of inactive metabolites of prohibited drugs, and the lengths of time that measurable traces of drugs or metabolites at or around cut-off levels might remain in a person’s system even after the effect of the drug has worn off.
It went further to outline that employers should also make it clear that a zero-tolerance policy meant that it would assume workers posed unacceptable risks if they were found to have traces of proscribed substances exceeding cut-off levels in their systems while attending for work, regardless of whether they showed any impairment or the substance was consumed in or outside of work.
“In the second instance a policy will be reviewed to see if it communicated what the business would do in all cases and what it may do depending on the circumstances. A ‘zero tolerance’ approach that ignores any mitigating circumstances, such as drink spiking, medication interactions, declared and managed addiction and actual impairment and risk, is likely to be found to be unfair. Even a fictional policy that stated ‘if you test positive you will be terminated’ will likely to be found to be clear and understood, but harsh and procedurally unfair as there is no consideration for mitigating circumstances”.
“It is tempting to fall back on ‘so don’t break the law and don’t take illegal drugs and you will be fine’ as a position, however this is complicated when the reality that some drugs that are illegal in Australia are legal in neighbouring countries and use while on leave, may, as in this case, trigger a positive result for use. The actions of an employee when not at work, provided it does not have an impact on the business, is not something the business can regulate or respond to”.
“It is this last element, the impact on the business, that is key here. What the business should be managing is the impairment. Did the actions of the employee outside of work hours, have an impact on the business? Did the employee taking cocaine 4 days earlier result in him putting the business, workers or visitors at risk? In this case the worker was a team leader, was noted as ‘completely normal’ by a drug testing professional and had levels that were 265 times less than someone who had just taken cocaine, so the courts were convinced that his out of work conduct did not present a significant risk to the business, workers or visitors” continued Elisha.
“So what should businesses be including in their Drug and Alcohol Policies?”.
“A good Drug and Alcohol Policy will; make it clear that the reason for the policy is the safety of the workplace and that impairment will be the focus; make it clear how testing will work and what happens when a positive test is returned; communicate, in common language, what is expected of employees; explain how to safely seek support for addiction; and outline a grievance process”.
“Communicating to employees in common language the expectations is difficult but necessary. Worked examples of fictional employees is often the most valuable way of doing this. Businesses are encouraged to engage with their appointed testing partner to discuss ‘impairment’ levels and risk for each type of role within the business and to craft scenarios to present to employees based on their role”, noted Elisha.
“For example a professional driver is at greater risk for bad outcomes when reaction times are impacted than an admin worker who is sitting at a desk for work, so conversations with the drug testing partner should explore what impaired looks like for these types of workers”.
“This approach is well used when it comes to alcohol. It is well understood that for most men the consumption of 2 standard drinks in the first hour and 1 standard drink per hour thereafter will leave reaction times and responses at a level that they will still be considered ‘safe’ to drive, but any more than this is ‘likely’ to result in impairment of reaction times and so it is legally considered ‘unsafe’ to drive”.
“The use of a similar practical approach for exploring other common risks like marijuana, cocaine, methamphetamine and oxycodone would be a valuable tool to communicate practical compliance expectations to workers”, continued Elisha.
“Pre work cognitive tests are also used in high risk workplaces to test other factors that may create an impairment, such as tiredness”.
“The bottom line learning is this; having a zero tolerance, test result based, drug and alcohol policy does not remove the requirement for the business to meet the procedural fairness requriements of; clear communication of expectations; consideration of mitigating factors and individual circumstances and reasonable risk context. A more valuable, risk and impairment focused approach is needed to ensure fairness and best outcomes at the workplace”, concluded Elisha.
Here to Help
ACAPMA members are reminded that ACAPMA has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can call on the advice and support of the ACAPMA Employment Professionals via employment@acapma.com.au .
HR Highlights are things to consider, implement and watch out for in your business.
They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au it’s free for members.
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