It is common for employers to have a drugs and alcohol policy to ensure that risks associated with the use of drugs and alcohol in the workplace are eliminated to protect the health and safety of its workers. While a breach of a drugs and alcohol policy may provide a valid reason for dismissal, a recent Fair Work Commission (FWC) decision highlights the risks for an employer in assuming that fair dismissal is possible in all cases of breach.

In Witherden v DP World Sydney Limited (2024), an employee had been on leave due to a shoulder injury and had been using cocaine to deal with depression associated with his injury. On his return to work, the employee took a drug test in which he tested negative for cocaine; however, he tested positive for cocaine metabolites, indicating that he had used cocaine recently. The employer’s drugs and alcohol policy stated that if a test returns drug metabolites above the Australian standards, the employee will be in breach of the policy.

The employee admitted to using cocaine 24 hours before his rostered shift. He stated that he was using cocaine as a coping mechanism for mental health issues associated with his shoulder injury. He admitted that he made a “stupid” decision and had already engaged with a counselling service. He also stated that he felt normal when he woke up before work and was unaware of how long the cocaine would stay in his system. The employer responded that while it was sympathetic to the employee’s circumstances, it did not excuse his conduct and he had breached the drugs and alcohol policy by exposing himself and others to unnecessary risk. The employer dismissed the employee summarily for serious misconduct.

The employee brought an unfair dismissal proceeding in the FWC, contending that the dismissal was harsh because of numerous factors, including his age, length of service with an unblemished employment history, the absence of any risk that he was impaired when he attended work, and the employer’s failure to consider options other than dismissal.

The employee submitted that he was not intoxicated at work, providing expert evidence stating that the effects of cocaine are relatively brief and only last for up to 90 minutes. The employer submitted expert evidence that despite the employee not being intoxicated, there can be a hangover effect from using cocaine, which results in a person being tired and restless for a day or two after cocaine use.

The FWC found that while breaching the drugs and alcohol policy was a valid reason for dismissal, there was no evidence to suggest that the employee was actually impaired when attending work.

The FWC observed the drugs and alcohol policy adequately informed employees about the consequences of drug use, recognised drug dependency as a treatable condition and encouraged employees to disclose such issues to access rehabilitation. However, the FWC was critical of the policy because it did not explain that:

• a positive test might arise for drug metabolites even after the drug’s effects had worn off; and
• risks associated with impairment endure when intoxication gives way to a hangover from consumption of drugs.

The drugs and alcohol policy should have provided clearer guidance on how long drug metabolites might remain detectable in an employee’s system after consumption.

The FWC found that, given the employee’s long employment history and his acknowledgement of the connection between his mental health and drug use, rehabilitation should have been considered as an alternative to dismissal. While the drugs and alcohol policy provided that a policy breach would expose the employee to dismissal for serious misconduct, it also gave the employer discretion to respond in other ways, such as rehabilitation. A single breach of the drugs and alcohol policy might not always constitute serious misconduct.

The FWC found that while a breach of the drugs and alcohol policy is a valid reason for dismissal, the dismissal was harsh and unreasonable as the policy did not adequately inform employees about the meaning of being fit for work, and the employer did not consider rehabilitation as an option which was available in the policy. The FWC also noted that while the employee tested positive for cocaine metabolites, he was not intoxicated at work and there was no evidence to suggest the employer was aware he had taken drugs but for the metabolites that appeared in his drug test.

The FWC ordered the employee to be reinstated.