Safety first – employee methamphetamine use outweighs procedure fairness

The Full Bench of the Fair Work Commission has upheld the dismissal of an employee, agreeing that the seriousness of a positive test result for methamphetamine outweighed the employer’s failure to follow policies and procedures.

Introduction

In the absence of specific legislative rules pertaining to an employer’s options for managing employees who use drugs or alcohol, many employers utilise workplace policies and procedures to regulate drug and alcohol use within the workforce.

Despite the reliance on these policies and procedures, safety considerations will often be more relevant, and sometimes even more important, than strictly adhering to the policy or procedure itself.

In the recent decision of Hawken v Patrick Stevedores Holdings Pty Ltd [2024] FWCFB 463, the Full Bench of the Fair Work Commission upheld an employee’s dismissal on the basis that the seriousness of testing positive for methamphetamine use sufficiently outweighed the employer’s own failure to follow its drug and alcohol procedure.

Facts

Mr Hawken was employed as a stevedore by Patrick Stevedores Holdings Pty Ltd. His duties included the operation of specialist vehicles in an environment that involved hazardous conditions.

In October 2022, Mr Hawken returned positive test results on two occasions for amphetamine and methamphetamine in breach of the company’s drug and alcohol policy.

Mr Hawken was issued with written warnings on both occasions, the second of which was stated to be a final warning. It advised Mr Hawken’s that any further positive tests could result in disciplinary action, including dismissal. Mr Hawken was also informed that, because of his behaviour, he would be subject to routine drug and alcohol testing for the next 12 months.

In October 2023, Mr Hawken breached the drug and alcohol policy for a third time after his negative on-site drug test was revealed to be positive by a confirmatory lab test. After conducting a ‘show cause’ process, Patrick Stevedores dismissed Mr Hawkin’s because of the repeated and serious nature of his conduct.

Mr Hawken then made a claim of unfair dismissal in the Fair Work Commission arguing that, because his third positive drug test occurred one year and eleven days after his first positive drug test, Patrick Stevedores breached its drug and alcohol procedure, under which a ‘show cause’ process may only be initiated if an employee commits three breaches within 12 months.

Decision at first instance

The Commission held at first instance that Mr Hawken’s dismissal was not unfair. Mr Hawken’s employment occurred in a hazardous environment and, despite being aware of the drug and alcohol policy, he attended work on three occasions with methamphetamine in his system.

It was concluded from this that, despite the Company’s deviation from the drug and alcohol procedure, Mr Hawken’s third breach justified a show cause process and consequently a dismissal.

Decision on appeal

Mr Hawken appealed the original decision on the basis that the Commissioner failed to conclude that his third breach was in isolation of the first and second breach and that the Company’s failure to follow the drug and alcohol procedures warranted a finding of unfair dismissal.

Despite the Company’s conflictingly drafted drug and alcohol procedure, the Full Bench determined that it was open to the Company to initiate a ‘show cause’ process instead of a third warning.

Although the Company deviated from its usual random selection process when sending Mr Hawken’s negative test to be further tested, the seriousness of Mr Hawken’s breaches outweighed the Company’s failure to comply with its policies and procedures.

After considering the nature of the employee’s work, the two prior warnings and the Company’s policy breaches, the Full Bench confirmed that the dismissal was not unfair.

Takeaways for employers

The Full Bench highlighted the importance of employers following their policies and procedures. However, more consideration will be given to an employee’s repeated and serious behaviour, particularly where there are safety concerns.

Nevertheless, to minimise the risk of litigation, employers should ensure that their workplace policies and procedures are adequately drafted and appropriate, including to the level of safety risks present in the workplace.

If you have any questions about managing the use of drugs and alcohol in the workplace or need assistance with updating your policies or procedures, please contact a member of our workplace relations and safety team.