Dismissal of Train Driver for Positive Drug Test Upheld

The Fair Work Commission has upheld the dismissal of a train driver with over forty years' service following his recording of a positive test for an illegal substance.

The driver had been employed by Pacific National (PN) for about 41 years prior to his dismissal on 13 September 2021. He had commenced as a trainee engineman and worked his way up to become a fully qualified locomotive driver.

During his last twelve months of employment, he had worked as a Terminal Operator, which involved monitoring the unloading of coal trains. In this role, it was his sole responsibility to communicate with the train drivers at the front of the train, sometimes up to 1.5 km away, about any potential unloading process issues.

On both Friday 16 July and Saturday 17 July 2021, the driver drank a substantial amount of alcohol.

Deputy President Tony Saunders accepted his evidence that the driver could not recall smoking marijuana on those nights, although his wife did inform him on the following morning that he had inhaled 2-3 times from her marijuana pipe.

As is common in the mining, resource and affiliated industries, PN has a policy that permits drug and alcohol testing of its employees. The driver was well aware of the policy.

On his second shift after the weekend, being 20 July 2021, he was subjected to a random drug and alcohol test. As soon as he was selected to take the test, he said he "may not pass" the test (referring to his consumption of marijuana several days prior).

He recorded a negative reading for alcohol but a non-negative result for his urine drug test. He was stood down on pay. A laboratory test confirmed that the driver had tested positive for cannabinoids.

During the subsequent investigation, the driver claimed that he had smoked marijuana approximately four weeks earlier but did not indicate the episode involving his wife. Following a show cause process, he was terminated on 13 September 2021.

PN presented evidence that the driver had a significant history of performance and safety concerns in the period from 2011 to 2020. These included verbal abuse of co-workers and derogatory comments to his supervisor, being involved in a train derailment, sending an offensive email to a colleague, failing to attend a shift without authorisation, and excessive use of personal leave without sufficient medical evidence.

In determining the dismissal to be fair, the Deputy President put considerable emphasis on the safety imperatives of the organisation and the driver's role in supporting that requirement. As he noted,

"(the driver's) role on 19 and 20 July 2021 involved safety critical work. Mr (R's) safety, and the safety and wellbeing of his team members, depended on each team member being alert, vigilant and performing their role safely".

In a similar vein, the Deputy President noted,

"PN operates in a safety critical industry. It is entitled to require its employees not to have any illicit drugs in their system while they are at work…His conduct in that regard was reckless and serious…This is not a case where there could have been any real doubt about whether there was any cannabis in Mr (R's) system when he was tested on 20 July 2021. He knew that he had smoked cannabis about 2 or three days earlier".

The application for reinstatement was dismissed.

RR v Pacific National Services Pty Ltd (U2021/8860) 21 January 2022

For questions about drug and alcohol policies, safety, misconduct, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.