Employee lawfully dismissed for breach of Fitness to Work policy

Employee lawfully dismissed for breach of Fitness to Work policy

The Fair Work Commission has upheld the dismissal of a manager who returned positive tests for illicit substances in breach of the company’s Fitness for Work policy. In doing so, the FWC rejected his claim that he had been unfairly targeted for testing and also determined there was no relevance in his submission that he may have unknowingly consumed cookies laced with a substance that caused his positive result.

The employee had been engaged by Wilmar Sugar Pty Ltd T/A Wilmar Sugar (Wilmar’s) since early 2019 as an IT Manager. He was interviewed on 29 April 2021 after two employees were concerned by his behaviours that he may have been under the influence of drugs or alcohol. His observed behaviours included slurred speech, body swaying, closing his eyes while talking, and repeating the same questions to the workers several times.

On 4 May 2021, the Manager was interviewed and stood down but was not requested to undergo a drug and alcohol test, which was permissible under Wilmar’s ‘Fit for Duty Procedure’. Shortly after providing a written response, it was determined that there was insufficient evidence to pursue disciplinary action. It was agreed that he would return to work on 17 May 2021, but due to sustaining a rib injury outside work, he did not recommence until 25 May 2021.

Upon returning to work, he was directed to undertake a drug and alcohol test that recorded non-negative results for several substances. The samples were then tested at an external laboratory, which confirmed positive results for both opiates and cannabinoids. Following a show cause process, he was terminated on 15 June 2021 for failing to meet his Fit for Duties requirements.

Commissioner Alana Matheson rejected the Manager’s submission that he was targeted for testing or that it was unfair for him to be tested upon his return to duty. As she noted,

“I do not accept that the Applicant was unfairly targeted or that the actions of (his managers) suggested premeditation. Rather I accept that (his managers) held concerns for the safety and welfare of the Applicant and others in the workplace, had a duty of care under work health and safety laws and acted on the recommendations of the Respondent’s health and safety specialist in requesting the reasonable cause testing…they held concerns about the Applicant’s behaviour, attendance and performance and I find that these concerns met the criteria for requesting reasonable cause testing in the Fit for Duty Procedure”.

Commissioner Matheson also determined that the Manager’s claims that he may have unintentionally ingested cannabis after consuming cookies his wife had retrieved from a function was irrelevant to the case. She affirmed the principles from other cases where it has been found that recklessness, negligence, misjudgement or inattention to detail can support a termination being lawful.

Consequently, she determined that the breach of the policy meant that there was a valid reason to terminate the employee. Finding no deficiencies in Wilmar’s process, the application for unfair dismissal was rejected.

LM v Wilmar Sugar Pty Ltd T/A Wilmar Sugar (U2021/15727) 28 October 2021

For questions about safety policies, breaches of alcohol or drug requirements, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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