IN a decision handed down early last week, the Fair Work Commission has ruled in favour of a prominent resource employer after dismissing an employee on grounds of testing positive for illicit drug consumption.

The Facts

On 15 January 2013, Downer EDI employee Russell Madsen was subject to drug and alcohol testing after returning from a period of R&R. Under the company’s fitness to work requirements, a urine test was administered to Mr Madsen and 900 other employees.

After returning positive results for methamphetamine, Mr Madsen’s test was forwarded for analysis to a Perth-based pathology laboratory. Meanwhile, Mr Madsen was stood down.

On 21 January 2013, the laboratory returned that methamphetamines were present in Mr Madsen’s sample, reflected recent use and were not a constituent of any medication. Via a phone call, the mining manager dismissed the employee and a letter of termination was forwarded via e-mail on the same day.

The Decision

Deputy President McCarthy asserted that Mr Madsen’s argument centred on “an expectation that he should not have been dismissed but rather provided with counselling and that despite the positive test to excess levels of amphetamines, he was nevertheless fit for work”.

Downer EDI argued that employees were expected to be fit for work on the day of return from R&R and that drug practices and policies were applied strictly and without differential treatment. Additionally, the company said employees were aware of the fit for work requirements due to the risks and hazards associated with minesite work.

Describing the company’s drug procedures to be reasonable and well-known, Deputy President McCarthy dismissed the case on grounds that Downer EDI’s drug procedures were well-known and that the hazardous nature of the conduct warranted the dismissal of the employee.

Implications for Employers

This case is a landmark for resource industry employers as it reaffirms the Fair Work Commission’s stance on occupational health and safety practices over employee conduct. For employers, a stringent drug testing procedure is encouraged to protect on-site operations and limit the likelihood of hazards imposed by drug-related behaviours.

Additionally, this case also emphasises that employers are not responsible for delivering counselling services to employees in breach of fitness to work requirements and can be dismissed in the first instance due to the seriousness of the conduct.

If you would like to know more about drug and alcohol testing for your site, contact your local AMMA office by clicking here.