Major lessons to be learned by all employers

An employer has been ordered to reinstate its employee, after he was dismissed when positive test results found traces of cocaine in his system. Moreover, the employer is required to backpay, but reduce the employee’s lost pay by 20%, in recognition of the fact that he failed a drug test.

In the case in question, Sydney Trains (Reece Goodsell v Sydney Trains [2023] FWC 3209 (4 December 2023) application of its policy was labelled erroneous, as it it did not consider all the matters in s387 (criteria for considering harshness relating to unfair dismissal) of the Fair Work Act 2009 (Cth), specifically points (a) and (h).

The Fair Work Commission (the Commission) overturned Sydney Trains’ decision, granting it had a valid reason for dismissing the worker, but reinstatement was ordered after the Commission considered the worker’s unblemished 26-year work record and determined that there was no risk of impairment. The reinstatement was further justified by the ambiguity within the drug and alcohol policy and failure to consider and implement alternative arrangements.

During the drug and alcohol testing, it was noted by the Testing Officer that the employee did not appear impaired, and that the employee expressed not feeling impaired or under the influence of any substance. After considering all of the information presented, the Deputy determined that there was no proper basis upon which attending work was a risk, or that the employee was under any impairment arising from the consumption of cocaine. It must be noted that the consumption of cocaine occurred four days prior to the testing, whilst the employee was on approved leave.

Therefore, blindly accepting positive results as proof of impairment cannot be solely used as the determining factor for a dismissal. Rather, exercising caution in conjunction with other factors to make a determination of dismissal/consequence should be considered.

In a similar previous case dealt by the Commission, the application of an employer’s drug and alcohol policy was highlighted and a key topic spoken to, as it was determined there was no valid reason for the employee’s dismissal and that the dismissal was considered unreasonable and harsh.

Similar to this case, there was evidence of:

• an unblemished work record;
• use of the particular drug occurred the day before, during the employee’s personal time out of work;
• employee was not a habitual drug user;
• employee had expressed contrition and remorse on their conduct at all relevant times before and after dismissal; and
• the employee was 64 years of age at the time of dismissal, having poor prospects of obtaining alternative employment and did not have much in the way of retirement savings.

Further, the employee’s conduct was considered a one-off incident, not reckless or intentional and did not lead him to being impaired or incapable at work. Thus it was concluded not serious misconduct, as determined by the employer.

The Commission found inconsistency in the ‘zero tolerance approach’, seen as one whereby any breach of the policy would result in dismissal without consideration of personal mitigating circumstances/factors.

Whilst in the current Sydney Trains case, the Commission recognised that a breach of the policy did occur and was possibly a valid reason for dismissal, what made the dismissal unfair were other mitigating factors that were disregarded, and the usage of a blanket approach/one size fits all policy.

The mitigating factors that should have been considered when determining the appropriate consequence, were:

• a 26-year long employment history without blemish;
• the absence of any evidence of impairment at the time of testing;
• genuine remorse displayed by the employee; and
• the lack of a clear information provided to employees about the policy and its application.

Unfortunately, Sydney Trains is having to face an unfavourable determination by Commission, which has been compounded by a more critical view from the Commission.

This case is a harsh reminder to all employers that policies need to be applied on a case-by-case basis, with careful consideration given to what is imbedded into the policies and how they are framed and communicated to employees. The blanket approach will no longer cut it.

If you find yourself having to prove your decision for an employee dismissal at the Commission, contact us – Mapien can support you to not only ensure your policies are adequate and applied appropriately, but also with advocacy at the Commission. Mapien has the expertise to provide wrap around services ensuring employers take proactive steps to avoid legal costs and reputational damage in their application of company policies.