Termination of stevedore for failing drugs test upheld

Termination of stevedore for failing drugs test upheld

The Fair Work Commission has upheld the termination of a long-term stevedore and workplace delegate for failing a random drug and alcohol test. The decision again highlights the consistent approach Fair Work takes when employees breach policies designed to support health and safety at the workplace.

The employee commenced work with stevedoring giant DP World on 19 August 1996. At the time of his dismissal in August 2021, he was engaged to work at the Port of Brisbane, where DP World operates a container terminal. During his employment, he had also been involved for lengthy periods as the union workplace delegate and served on safety committees.

On 11 August 2021, seven hours into his shift, the stevedore was selected for a random drug and alcohol test in accordance with DP World’s Alcohol and Other Drugs Policy (the AOD Policy). The initial swab test indicated traces of THC, suggesting recent use of cannabis. A urine sample was then taken, consistent with the AOD Policy, and the laboratory test results confirming the initial result were provided to the employee on 13 August 2021.

On 17 August 2021, the stevedore was provided with a Show Cause letter and invited to attend a Show Cause meeting on 20 August 2021. He attended the meeting with his support person, the MUA Queensland Assistant Secretary. He was then provided with the opportunity to submit a written response.

The decision was made to terminate the employee for wilful misconduct, and he was advised by letter on 24 August 2021.

In the submissions before Commissioner Paula Spencer, the employee claimed that he had been harshly treated by DP World. While acknowledging he had consumed cannabis the night before his shift, he claimed that he did not feel impaired when he reported for work and was unaware a swab test would detect his usage.

He further claimed that the company did not take into consideration his lengthy service as well as his involvement as an employee representative on the Employee Representative Committee. He claimed that he had been suffering from depression and sleep deprivation during the pandemic and had sought short-term relief through the consumption of cannabis.

Commissioner Spencer noted in her decision to reject the application,

“In the current matter, the employee had worked some time into the shift and yet still tested at a high range for THC … in consideration of the safety critical context of the Applicant’s work and that termination as an outcome in the Respondent’s policy was known to the Applicant, it is considered to present a valid reason for dismissal and to be lawful and reasonable in the circumstances”.

In conclusion, the Commissioner noted,

“Despite his awareness of the drug and alcohol policy, after consuming an unknown quantity of cannabis the night before his shift, the Applicant proceeded to present for work the following day and tested positive at a high level. The Applicant’s actions in this regard have been weighed with all of the other relevant factors and do not support a finding that the dismissal was harsh, unjust and unreasonable”.

The application was dismissed.

CH v DP World Brisbane Pty Ltd – [2022] FWC 1406

For queries about drug and alcohol policies, misconduct, 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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