By
Gaby Grammeno
Contributor
The worker was dismissed after he tested positive for drugs on his first day back from leave. However, the Fair Work Commission criticised Sydney Trains' administration of its drug and alcohol policy and found the dismissal was unfair.
The Sydney Trains employee tested positive for cocaine metabolites but claimed his job performance wasn’t impaired. The case highlighted the distinction between the use of drugs (outside work hours) and impairment on the job, in the sense that impairment presents a potential risk to safety if a person is not fit for work due to intoxication affecting their concentration, judgment, reaction times, or cognitive processes.
Use v impairment
Sydney Trains’ drugs and alcohol testing policy adopted the relevant Australian Standard’s cut-off levels for drugs or their metabolites. The Standard (AS/NZS 4308) is not designed to measure impairment – the testing cut-offs in the Standard have nothing to do with the effects of the drug on performance but are set to ensure scientific confidence that the answer is correct.
This meant that in effect, Sydney Trains’ policy focused on evidence of workers’ drug use, even if that had been in their own time when on leave and the person was no longer impaired in terms of fitness for work.
When the worker failed a random drug test on his first day back from leave, the test detected benzoylecgonine, a known metabolite of cocaine, at a level higher than the cut-off in the Standard.
He was suspended from work on 7 June 2022 pending a formal investigation, and when asked to provide a written response, he wrote that his decision to try cocaine was a one-off.
‘I made an error in judgement for which I am deeply apologetic. At the time I attended work on 4 June 2022, I did not perceive or feel I was impaired or intoxicated in any way shape, or form. If I honestly felt impaired in any way I wouldn’t have attended work,’ he wrote.
‘... At no stage of my employment with Sydney Trains have I consumed prohibited drugs on agency premises at any time. Safety for workers, customers and myself is paramount which I take very seriously ... I am deeply remorseful of this one-off incident, and … I have been worried sick.’
Nevertheless, Sydney Trains chose to ignore the mitigating factors such as the worker’s contrition, the absence of any evidence of impairment at the time of testing, and his unblemished 26 years of service. It took the view that his positive drug test justified sacking him, and the worker was ultimately dismissed three months later.
The worker maintained his belief that he wasn’t ‘under the influence’ at work, and filed an unfair dismissal application with the Fair Work Commission.
In the Commission
The worker relied on evidence from expert witnesses including Professor Robert Weatherby, whose extensive research on pharmacology and drugs in sport provided relevant insights.
Professor Weatherby explained that the effects of cocaine can last for up to 90 minutes, after which it rapidly disappears from the body. Cocaine metabolites on the other hand stay in a person’s system much longer, mainly the cocaine metabolite benzoylecgonine, which is not considered a drug, as it is pharmacologically inactive and has no impairing effects.
He said if the worker used cocaine on 31 May, there would have been no intoxication or impairment due to cocaine on 4 June 2022, when he failed the drug test, consistent with the worker’s assertion.
Dr John Lewis, a consultant toxicologist, confirmed it was not possible to assume impairment from the results of a urine, saliva, or hair test.
Sydney Trains’ chief health officer explained that the organisation did not test for impairment, but rather for the presence of a drug or its metabolites at levels higher than the applicable cut-off levels set out in the Australian Standard. Sydney Trains’ D&A Policy defines ‘drug-free’ to mean ‘no level of drug or inactive drug metabolites at sufficient concentration to be detected in urine at the threshold set by the Standard’.
A key manager in the network maintenance area (where the worker was employed as the work group leader) said that safety was his primary consideration in drug-related matters, and if a worker tested positive, his position was that their employment should be terminated, unless compelling evidence persuaded him otherwise. In this case, given that the worker had chosen to take drugs, there was no guarantee he would not do it again, and he doubted the worker would properly value the safety aspects of his role.
FWC deputy president Michael Easton found Sydney Trains’ approach to the worker’s breach of the D&A policy was procedurally unfair. He said that though the worker was given an opportunity to respond, there was no evidence that anyone involved in the process fairly considered his response or was open to the possibility he could remain in employment. That process ‘supports the conclusion that his dismissal was unjust and unreasonable’.
The deputy president took the view that Sydney Trains’ criticism of the worker’s decision to attend work without being certain he was ‘drug-free’ was unreasonable. The information Sydney Trains made available to its workforce was not clear on how the Australian Standards applied, or that the random testing program tested for use rather than impairment. In this case, there was no basis to find there’d been a risk of impairment.
He said Sydney Trains "does not appear to have exercised any caution and instead blindly accepted the positive test result to be proof of a risk that [the employee] attended work under an impairment."
The deputy president was scathing about Sydney Trains’ failure to learn any lessons from earlier litigation related to drug testing (Sydney Trains v Gary Hilder).
"The failings identified in Hilder by and large related to Sydney Trains’ lack of proper consideration of the individual employee’s circumstances. Recognising that the breach of the D&A Policy was a valid reason for dismissal, what made Mr Hilder’s dismissal unfair were the other mitigating factors that applied to him that were either ignored or disregarded by Sydney Trains.
"Most of the same mitigating factors in Mr Hilder’s case apply to [the worker]: a long employment history without blemish, the absence of any evidence of impairment at the time of testing, the apparent zero tolerance/one size fits all dismissal policy, remorse, the lack of clear information provided to employees about the policy, and so on."
The deputy president noted that: "The criticism of Sydney Trains’ administration of its own policy in the Hilder litigation has essentially been ignored. Sydney Trains’ conduct in Hilder that was criticised by the Commission was repeated."
Decision
Although the positive drug test provided a valid reason for dismissal, the deputy president was satisfied the dismissal was harsh, unreasonable, and unfair when the mitigating factors were considered.
He ordered the worker to be reinstated with continuity of employment but with a 20% reduction in compensation for lost pay in recognition of his failing a drug test.
What it means for employers
Employers need to give workers clear information on the implications of their drug and alcohol policy. Before deciding to dismiss a worker for a breach, they need to take proper account of any mitigating factors.
Read the decision
Reece Goodsell v Sydney Trains [2023] FWC 3209 (4 December 2023)
