Forklift operator not unfairly dismissed for breach of ‘zero tolerance’ drug and alcohol policy

In the recent case of Shane Clayton v Coles Group Supply Chain Pty Ltd [2016] FWC 4724, the Fair Work Commission (FWC) found that an employee who consumed cannabis before attending work was not unfairly dismissed for breach of the employer’s ‘zero tolerance’ drug and alcohol policy.

Facts

Mr Clayton was employed by Coles at a distribution centre in a position requiring him to operate manual handling equipment. The distribution centre, as a high risk environment, had a ‘zero tolerance’ drug and alcohol policy.

On 25 January 2016, Mr Clayton was involved in a forklift incident. Coles accepted the incident was not his fault. Following the incident, Mr Clayton underwent an on-site oral fluid drug test that returned a positive result for cannabinoids. Further testing confirmed the on-site test result.

On 1 February 2016, Coles conducted a disciplinary meeting concerning Mr Clayton’s positive test result that provided Mr Clayton with the opportunity to show cause as to why his employment should not be terminated. After considering Mr Clayton’s response, Coles terminated his employment summarily without notice or payment in lieu. Mr Clayton argued that the dismissal was unfair because (among other reasons):

1. He was advised during the induction training that he needed to ensure that he did not smoke marijuana within 3 to 6 hours of the commencement of his shift and he had complied with this.
2. He reasonably believed that he complied with Coles’ drug and alcohol policy by leaving a considerably longer gap between his consumption of cannabis and his attendance at work.
3. His consumption of cannabis was linked to workplace stress and was part of his strategy to manage that alleged stress.

Findings

The FWC found that Mr Clayton’s dismissal did not constitute unfair dismissal because:

1. There were valid grounds for Mr Clayton’s dismissal. The FWC concluded that it was reasonable for Coles to have a zero tolerance drug and alcohol policy that should be consistently applied because of:
   (a) the nature of the workplace: a busy environment with various vehicles and machinery being operated;
   (b) the work health and safety risks associated with employees working under the influence of drugs in this type of environment; and
   (c) the lack of an objective test for determining Mr Clayton’s impairment.
2. Mr Clayton was notified of the reason for his dismissal.
3. Mr Clayton was afforded a proper opportunity to respond to the allegations. It noted that the meeting on 1 February 2016 was adjourned to allow Mr Clayton time to consider the allegations and provide a response.
4. Mr Clayton was accompanied by a support person in discussions concerning the matters leading to his dismissal.

The FWC held that while the use of cannabis for pain relief may be considered a mitigating factor, that factor needed to be weighed up in circumstances where Coles had a confidential scheme and policy that encouraged self-reporting problems without the spectre of sanctions. The FWC also found that the employee used cannabis for recreational purposes.

While the FWC also acknowledged that there were potential dangers for an employer in providing information about detection periods as this may detract from the zero tolerance message, any information provided to Mr Clayton by Coles did not provide a mitigating factor because:

1. The window of detection was given as an indicative guide only and could not reasonably be expected to represent a guaranteed safe or reliable withholding period given the context in which it was provided.
2. The responsibility upon an employee not to attend work with any detectable drugs in their system was clear and understood.
3. Mr Clayton was advised that if in doubt, he should not attend for work.

The FWC found that Mr Clayton had consumed cannabis on the morning before his shift, and could not be confident that his system would be clear of the drug when he attended work. He was therefore, at best, recklessly indifferent to his potential to breach the zero tolerance policy, and any confidence to the contrary could not be soundly based.

While the FWC held that the lack of notice or payment in lieu of notice would usually be a factor strongly supporting a finding that the dismissal was unfair, this was not decisive here. This was because Mr Clayton had misled Coles about the timing of his consumption of cannabis and could not have legitimately relied upon the indicative window of detection.

Lessons to be learned

This case highlights the importance of having a comprehensive drug and alcohol policy that is consistently applied.