THE Fair Work Commission has upheld a resource employer’s decision to dismiss a mine worker on grounds of dishonesty, after returning positive results during a routine drug and alcohol test.

Background

In a decision handed down by Deputy President Lawrence, an employee at Anglo Coal’s Drayton mine site in New South Wales was found to be fairly dismissed for denying drug use in interviews both before and after a test which returned positive results for methamphetamines.

During communications prior to the screening, conducted in April 2013, the employee indicated he had used only cold and flu tablets and continued to deny the use of illicit substances until the pathology results were shown to him during a ‘show cause’ meeting after the screening.

The employee then admitted to using an unknown drug at a party over the preceding weekend.

In a letter forwarded to the employee, Anglo Coal stated the reason for termination was dishonesty, noting that his dishonesty had ‘destroyed the relationship of trust and confidence between the company and [the employee]’.

Anglo Coal also stated the worker’s behaviour contravened a provision of the Code of Conduct imploring employees to ‘operate in an honest and ethical manner’.

The Decision

Responding to the employee’s claims that his dismissal was unfair because the Anglo Coal drug and alcohol testing policy did not imply dismissal for a ‘first fail’, Deputy President Lawrence said:

“It is true that [Anglo Coal] had a disciplinary policy which had a warning as a first step but this also maintains the parallel right to summary dismissal. The application of the policy does not mean that [Anglo Coal] was not entitled to investigate what happened and seek an explanation from the [employee].”

During the investigation into the employee’s test results, the Fair Work Commission agreed that Anglo Coal had offered ample opportunity for the employee to restore the relationship of trust and confidence.

Deputy President Lawrence concluded that the employee’s “conduct in failing to declare, represented a serious breach of the relationship of trust and confidence and justified summary dismissal”.

Implications for Employers

Drug and alcohol testing on resource industry worksites is a proactive measure taken by many organisations to bolster workplace health and safety standards, but the policies surrounding such measures can be somewhat complex.

This case in particular highlights such complexities, as the employee argued unfair dismissal due to a ‘first fail’ clause within the organisation’s drug and alcohol policy which did not provide for summary dismissal. However, it is important to note that employers have grounds for summary dismissal of an employee found to be intoxicated while at work.

A clear workplace policy is a useful tool for stipulating the procedure for drug and alcohol screening, including the possible outcomes of a test returning positive results for intoxication, and will provide employees with a greater understanding of expectations in the workplace while also potentially protecting the organisation from claims of ambiguity.

For more information about drug and alcohol testing at your workplace, including advice from AMMA’s workplace relations experts, contact your local AMMA office by clicking here.