Procedural deficiencies render termination harsh and unreasonable
Despite finding that a company may have had sufficient grounds to terminate an employee who failed a drug test and tampered with monitoring equipment designed for safety, the Fair Work Commission has ruled the termination to be both harsh and unreasonable and ordered the former employer to pay compensation.
The employee, Mr ‘BU’, commenced employment with SESLS Industries Pty Ltd in May 2020 as a Multi-Skilled Operator at the Maules Creek open-cut coal mine in New South Wales. SESLS supplies labour, including plant operators, to Whitehaven Coal Mining Ltd (WHC), the mine owner/operator.
Mr BU suffers from various medical conditions, including bipolar and depression, and had been prescribed the drug Temazepam by his treating physicians. After returning to work from a temporary absence in June 2024, he disclosed his use of the drug to the company’s Health and Safety Manager and representatives of WHC.
On 25 June 2024, there was a telephone discussion between BU and the Health and Safety Manager about his use of Temazepan. Later that day, he received a digital copy of a medical management plan (MMP), which noted, ‘Must not take Temazepam during the assignment. It is against Whitehaven Coal’s Safety Rules to take any form of Benzodiazepine if performing a Safety Critical Role’.
On 23 July 2024, BU underwent a random drug test, which returned a non-negative result for Temazepam. He was permitted to return to work, awaiting further external testing, which was confirmed on 25 July 2024.
On 25 July 2024, while BU was driving a WHC vehicle on-site, he covered a piece of safety equipment, an in-vehicle camera, for approximately 25 seconds. In his subsequent interview, he claimed that he had simply used some mouthwash to relieve the symptoms of burning mouth syndrome.
He was also required to undertake a further drug test, which again returned a non-negative result for Temazepam. He was stood down and driven back to the Mine’s camp.
The following morning, he received a message from his employer requesting that he meet with them in the car park. A short discussion took place, and he was then summarily dismissed. A termination letter was provided on the same date, stating that his dismissal was due to his deliberate covering of a critical safety system and breaching the terms of the MMP.
In assessing the submission provided by BU, Deputy President Thomas Roberts accepted that the operator may have understood that the prohibition on him consuming the drug referenced in the MMP only meant consumption whilst at work, as opposed to at night, to assist his sleeping patterns.
The Deputy President also noted that the termination of BU for a first drug offence was not consistent with WHC’s policy.
In determining the dismissal to be unfair, the Deputy President noted “The conflicting requirements of the Applicant’s medical condition, his use of a prescribed medication, the terms of the WHC policy and the additional instruction from WHC that the use of Temazepam by the Applicant was prohibited at all times should have been the subject of further consideration and discussion before the decision to terminate was implemented”.
The Deputy President awarded the operator $20,648.29 in compensation.
BU v SESLS Industrial Pty Ltd [2025] FWC 186 (23 January 2025)
For queries about drug and alcohol policies and enforcement, safety breaches, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178,1300 WAL LAW 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.
Ref: 487.0225
