In a recent decision the Fair Work Commission ordered the reinstatement of a long serving employee who failed a drug test under his employer’s ‘zero tolerance’ drugs and alcohol policy.
The Facts
The employee was an area supervisor with 27 years’ service. After smoking a joint on a Friday night he self-tested and cleared himself on Sunday. On Monday 25 August 2025 he was drug tested at work and recorded a non-negative result for low levels of THC.
His employment was terminated after he had been given an opportunity to show cause as to why he ought not be dismissed.
He applied for unfair dismissal.
The Hearing
At the hearing the employee provided expert evidence about the test results including that, while he was over the cutoff level for the test, he was neither intoxicated nor impaired to work at the time of the test.
The Decision
The Commissioner upheld the employee’s application and ordered reinstatement to his position, finding that:
- Although the positive drug test provided a valid reason for dismissal, the employer’s policy had other sanctions than termination available, to which it had not given adequate consideration.
- The termination was harsh after taking into account the employee’s 27 years of service, unblemished disciplinary record and an otherwise untarnished safety record for a policy breach.
Implications
The case is a reminder to employers of the importance of a balanced approach in applying workplace policy and carefully considering if other outcomes than termination are available.
The case is also a reminder to employees of the importance of following employer policy and that breach of a policy can amount to a valid reason for dismissal.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.