By Gaby Grammeno Contributor
The worker was a forklift operator with a company that manufactures and distributes food ingredients.
In March 2024 he tested positive for drugs. He was told that further breaches of the company’s drug and alcohol policy would not be tolerated and received a final warning.
Two months later, on 6 May, he was using a forklift to load a truck when his supervisor told him he had to do another drug test. The worker responded by saying ‘I’ve got to go, I just shat myself.’ He said he did not want to do a test in that condition and left the site immediately.
He later obtained a medical certificate stating he’d been ‘unfit for work’ on 6 and 7 May. In his submission, the worker said the incident had been the ‘culmination of a campaign of bullying’ against him by his supervisor, but subsequently claimed that what he’d meant was that human resources had targeted him through the company’s drug testing processes. He said he’d been asked to undergo multiple tests whereas other workers had not.
Multiple attempts to contact him were made by phone and text message after the incident, but he could not be reached. He later claimed there had been a problem with his phone.
The company’s drug policy stated that if an employee attempted to avoid a drug test, this would be treated as a breach of the policy and disciplinary action would follow and that for a second offence against the policy an employee may be summarily dismissed.
When this was put to the worker, the employer did not receive a satisfactory response and sacked him.
The worker applied to the Fair Work Commission claiming unfair dismissal. He contended that his dismissal was unfair because he had not sought to avoid the second drug test but had hurried home after defecating in his trousers.
In the Commission
After considering the evidence, Deputy President Alan Colman accepted ‘with some hesitation’ that the worker had had an ‘accident in his trousers’, but he did not accept that this compelled him to leave work, or that it was the main reason he left work that day.
He said the worker had other reasonable options open to him.
‘He could have gone to the bathroom to clean up. He could have done the drug test and then gone home. He may not have wanted to do that. But his job was at risk: he was on a final warning for breaching the drug and alcohol policy. [The worker] needed to take the matter very seriously, but he did not take it seriously at all.’
Feeling embarrassed and not wanting to do a drug test in his condition were not good or convincing reasons not to take the drug test. His supervisor had told him it would look bad if he left work after being asked to do a drug test, but he left anyway, without offering to do the test at some other time or place.
The employer’s representative said the company would have been content for him to go home to clean up first and then return to do the drug test, or for him to do the drug test at the doctor, but the worker did not take up either of those options.
Deputy President Colman noted that there had been no medical emergency requiring the worker to leave the site, and found that he’d left work to avoid the drug test, contravening the company’s drug policy.
He said the worker showed no concern for the integrity of the drug testing process, and in his view, the seriousness of the conduct warranted immediate dismissal.
‘This was not a disproportionate response,’ he said. The worker had been notified of the reason and given an opportunity to respond, and there was no suggestion that he’d been refused a support person. There was a valid reason for his dismissal.
In closing, Deputy President Colman said that ‘nothing can be more important than protecting health and safety in the workplace, and a drug and alcohol policy is one important means of doing so’.
‘Failure to comply with a reasonable workplace drug and alcohol policy is unacceptable.’
The Deputy President concluded that the dismissal was not harsh, unjust or unreasonable, and therefore not unfair. The worker’s application was dismissed.
What it means for employers
The FWC took the position that failure to comply with a reasonable workplace drug and alcohol policy is unacceptable because it undermines efforts to keep workers safe and exposes the employer to risk. The DP said that if the company had responded more ‘tepidly’ with a warning and the worker had later injured someone with his forklift while testing positive for drugs, the company could reasonably have been accused of not taking all reasonable measures to protect health and safety.
The decision highlighted the FWC’s view that compliance with drug and alcohol policies aims to protect workers, the workplace and the employer.
Read the decision
Mr Jake Candido v Scalzo Trading Co Pty Ltd [2024] FWC 2129 (16 August 2024)
