Safety specialist reasonably advised drug test of worker
A worker claiming he accidentally ate cannabis cookies before failing a workplace drug test has failed to overturn his dismissal. He argued his employer unreasonably subjected him to the test when he wasn’t displaying any behaviour or symptoms of intoxication or impairment.
Fair Work Commissioner Alana Matheson accepted the employer’s submission that his managers had sufficient concerns about his performance and behaviour to request he take a test.
In Sydney, the Commissioner heard that early this year, Wilmar Sugar Pty Ltd stood the IT project manager down over allegations he had appeared to be under the influence of drugs and alcohol while at work.
She heard two of his colleagues told the employer that on one afternoon they witnessed him slurring his speech, swaying, talking with his eyes closed and repeating himself, making one of the colleagues feel unsafe.
Wilmar found there wasn’t enough evidence to take any disciplinary action against him, but upon his return to work he was subjected to a drug and alcohol test that returned a result of 967ug/L for cannabinoids.
This was 19 times higher than the cut-off level prescribed by the employer’s “fit for duty procedure” and the worker was sacked.
He claimed unfair dismissal, telling the FWC the result came as a shock and he subsequently learned that prior to the test, he unknowingly ate cookies containing cannabis that his partner brought home from a party.
He argued the dismissal was unfair because the test detected residual trace elements of something he unintentionally consumed and he was not “under the influence” at the time.
He was approached upon his return to work and targeted for “reasonable cause” testing under the procedure, despite not showing any symptoms or behaviour to suggest he was intoxicated or impaired, he claimed.
The employer’s actions were unreasonably based on an “unsubstantiated assumption” that he had been intoxicated at work in April, he said.
Wilmar told the FWC its fit-for-duty requirements, which the worker was dismissed for breaching, weren’t focused on the perceived impairment of a worker but on what cut-off levels were acceptable to the business.
It said its managers held reasonable concerns over the worker’s behaviour, attendance and performance leading up to its request that he take a drug and alcohol test, to ensure the safety of everyone in his team.
The test had been recommended by its head of safety, to ensure it was safe for him to return to work, it said.
“I accept that [these managers] held concerns for the safety and welfare of the [worker] and others in the workplace, had a duty of care under work health and safety laws and acted on the recommendation of [Wilmar’s] health and safety specialist in requesting the reasonable cause testing,” Commissioner Matheson said.
Their concerns met the criteria for requesting staff to undertake reasonable cause testing under the fit-for-duty procedure, she found in dismissing the worker’s case.
She found the worker’s claim that he unintentionally consumed cannabis was “questionable” and irrelevant “to an assessment of [his] failure to comply with the fit-for-duty procedure as a reason for dismissal”.
The Commissioner referred to Sydney Trains v Gary Hilder [2020] FWCFB1373, where an FWC full bench upheld the reinstatement of a safety-critical rail worker who failed a cannabis test (see related article), but stressed it would place employers in an “impossible position” if they had to demonstrate “intentionality” to enforce workplace safety policies.
Masters v Wilmar Sugar Pty Ltd T/A Wilmar Sugar [2021] FWC 6230 (28 October 2021)
This article was produced and originally posted by OHS Alert –
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TAG :- Drug Test, Drug Testing, Fwc
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