A MAJOR trade union has received scalding reprimand from the Fair Work Commission after attempting to argue that a worker who tested positive for four times the detectable limit of methylamphetamine showed no signs of impairment and was unfairly dismissed.
The former driver, who operated 580-tonne dump trucks at Downer EDI’s Boggabri open-cut coal mine in New South Wales, claimed her employment contract had been unfairly terminated after an on-site drug screen, conducted in accordance with company policy, returned positive results.
The worker argued she had been a victim of a drug-spiking incident on the preceding weekend and under representation by the Construction, Forestry, Mining and Energy Union (CFMEU), further submitted that she had experienced no impairment as a result of the drugs.
Expert evidence provided by the organisation, however, found it was implausible the dose of methylamphatamine found in the worker’s system was the result of a single dose taken 80 hours prior to the drug screen.
Further, it argued that drug use was a breach of the company’s ‘cardinal rules’ as it posed ‘critical safety implications for the welfare of those who work at the mine’.
Commissioner Cambridge rejected the former employee’s position and turned to the argument of the CFMEU regarding the worker’s ability to work, describing it as ‘irresponsible and discreditable’.
“It was highly regrettable to observe during the hearing that an organisation which apparently conducts campaigns which strongly advocate safety in the workplace, could contemplate a proposition which, in effect, would countenance a person driving a 580 tonne truck whilst having methylamphetamine in their body at a level four times the reportable cut-off figure,” the Commissioner said.
“Any realistic and responsible pursuit of the case on behalf of the applicant should have been confined to the development of evidentiary support for the applicant’s explanation for the presence of the methylamphetamine.
“Indeed, much greater energy and focus should have been devoted to such an evidentiary position rather than any attempt to defend the indefensible.”
The employee’s claim for remedy against unfair dismissal was rejected.
Decision encouraging, resource industry says
Responding to a history of inconsistent decisions on dismissal following drug use, resource industry employer group AREEA applauded the decision of the Fair Work Commission and said it ‘hopes that future decisions would take a similarly unsympathetic view to drugs in workplaces’.
“For decades, many remote resource projects have regularly tested for drug detection. It is well understood by employees that this acts as both a deterrent and as an absolute safety measure,” AREEA chief executive Steve Knott said.
“Unfortunately, this zero tolerance approach is often undermined by the undue interference of third parties which believe they ‘know better’ or argue on points of ‘fitness for work’, ‘recreational use’, or ‘level of impairment.
“Remote mine sites, large construction projects and FIFO villages are not places where you would want to work alongside a colleague under the influence of drugs. Employers must have the right to manage such safety risks and say ‘if you touch illicit drugs, there is no place for you on our sites.”
Click here to read the decision in full.
AREEA members are encouraged to contact their local AREEA office to speak with our workplace relations consultants for advice, guidance and information on drug and alcohol testing policies and termination of employment.
