FWC orders worker back to work after positive cocaine test

The Fair Work Commission has ordered Sydney Trains to reinstate a worker who tested positive for cocaine when he returned to work after eight days’ leave.

A range of mitigating factors, including no evidence that the worker was impaired by drugs at work, meant the dismissal was harsh, despite the worker’s urine tests showing levels of substances in his system above the cut off levels in the employer’s drug and alcohol policy.

The worker said he had used cocaine with some friends four days before returning to work and thought it would have worn off by the time he went back to work. A random drug test on his first day back returned a reading of 264ug/L of benzoylecgonine (a metabolite of cocaine).

Sydney Trains’ drug and alcohol policy states that it has a vision of a drug- and alcohol-free workplace and to achieve this it has an acceptable test reading less than the cut off level stipulated in the Australian / New Zealand Standard 4308 (AS/NZS 4308) for tolerances of drugs, which is set at 150 ug/L.

Importantly here, the relevant standard was designed to test of the presence of substances, not impairment. Expert evidence given during this hearing established that the concentrations seen after a normal dose of cocaine is in the many thousands and so the worker’s body was at the very end of the process of eliminating the benzoylecgonine. Testing normally finds concentrations of around 9,000 ug/L and on some occasions 70,000 ug/L or more. Concentrations of up to 90,000 ug/L of benzoylecgonine could be detected after a single dose of cocaine.

Sydney Trains proceeded to dismiss the worker because of his failed test and he lodged an unfair dismissal application with the Fair Work Commission.

Applying the criteria to determine whether the dismissal was lawful or not, Deputy President Easton held the following:

1. 1. There was a valid reason for termination based on the worker’s breach of the drug and alcohol policy;
   2. Despite this, the termination was harsh, unjust and unreasonable taking account of:
      1. the worker’s long and unblemished employment;
      2. his cooperation with the disciplinary investigation, his remorse and the fact that he took responsibility for his actions;
      3. the absence of any risk that the worker was impaired when he attended work;
      4. Sydney Trains’ mind being closed in the disciplinary process to the worker continuing in his employment;
      5. the inadequate and contradictory information available to employees about the drug and alcohol policy; and
      6. Sydney Trains’ failure to consider options other than dismissal.

   Deputy President Easton pointed to case authorities dealing with drug testing which found that where there is a difficulty identifying and proving impairment, then testing for usage rather than impairment is likely to be fair and reasonable, especially in safety critical roles. He said that where a worker fails a test and the risk the worker was impaired when they took the test cannot be eliminated, then the employer can take strong action including dismissal.

   However, in this case, there was found to be no risk that the worker had been impaired at work, given the test occurred on his first day back from leave and his test results were so low.

   In order to justify dismissal based on a breach of the policy, Sydney Trains must have explained to its workforce what it meant by “drug free” in a straight forward way.

   The information made available to the workforce was not clear on how the Australian Standards applied, or that in reality the random testing program tests for use rather than impairment.

   The Deputy President said that if Sydney Trains wanted to apply its drug and alcohol policy like a sports administrator and bring sanctions on anyone who consumes certain drugs at any time (inside or outside of work), then the information it supplied to its workforce needed to unambiguously state these expectations. The fact that it did not, contributed to the finding that this dismissal was harsh and unreasonable.

   Sydney Trains was ordered to reinstate the worker, recognise continuity of service and to provide backpay, albeit discounted by 20% due to his failed drug test.

   Now that the festive season is well and truly here, this case is a timely reminder that for most employers, the real issue will be whether an employee is impaired by drugs or alcohol at work, and not what they may have been up to on their time off. If work is safety critical, it can be reasonable to test strictly for use but either way, drug and alcohol policies need to be clear about expectations and they must be explained and applied in a way that workers can understand.

   Reece Goodsell v Sydney Trains [2023] FWC 3209 (4 December 2023)

   With George Dikranis, law clerk.