FWC Rejects out of Time Application for Employee who Failed Drug Test

The Fair Work Commission has rejected an out of time dismissal application by an employee whose main argument was that the delay in a laboratory confirmation of his drug sample rendered his dismissal harsh and unfair.

The employee had been engaged by the Pilbara Iron Company (Services) Pty Ltd (Pilbara) for 17 years as a rail maintainer on an iron ore mine in the north of Western Australia. He was required to drive, work around and operate on locomotives in this role. He recognised his role was a safety critical role.

Pilbara has an Iron Ore Alcohol and Other Drugs Policy Statement (the policy) which the worker was subject to and familiar with. The policy obliges employees not to work or be in the workplace with illicit drugs present in their body in excess of prescribed limits and also mandates serious disciplinary consequences for employees who breach the policy, which can include termination of employment.

On 20 March 2022, the employee was randomly selected for drug and alcohol testing consistent with the policy and gave a non-negative urine sample for both amphetamine and methylamphetamine.

The subsequent laboratory report confirmed that the traces of amphetamine were consistent with the employees prescribed and declared medication but that the methylamphetamine was not.

The employee was stood down, and a show cause investigation commenced. He could not explain the methylamphetamine traces but suggested he had been to the camp bar and drank someone else's vodka, lime and soda.

During the investigation, the employee chose not to have a support person nor offered any reasons to mitigate his situation. In evidence before Commissioner Bruce Williams, the mine's Locomotives Superintendent stated that the worker did not make any comments at the teleconference during which he was terminated, other than asking about how he could get his gear off the mine site.

The worker lodged an unfair dismissal application beyond the 21-day prescribed limit as per the Fair Work Act 2009 (the Act). The worker's major argument was that he claimed the laboratory testing of his drug sample, which occurred on 29 March 2022, was excessive in the circumstances. He stated that an ex-employee, whom he refused to identify, told him that the laboratory testing should have occurred earlier and effectively, the delay tainted the results.

In contrast, Commissioner Williams accepted the testimony of Pilbara's Chief Toxicologist,

"The evidence of Dr Tynan is that the delay itself and unknowns about how his sample was handled before arriving at the laboratory do not invalidate the findings in the laboratory's final Confirmation Report…He (Dr Tynan) says the period of time between the applicant's sample collection and testing in the laboratory of 7.5 days was not normal. However, it was in the laboratory's timeframes".

In rejecting the application, Commissioner Williams determined that there was little merit in the case. Quite simply, he noted,

"The applicant did not provide an acceptable explanation in mitigation for attending the workplace with illicit drugs in his system…This conduct would be valid reasons for his dismissal".

In determining that there were no exceptional circumstances to waive the 21-day limit, the application was dismissed.

For queries about drug and alcohol policies and testing, safety policies, 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.