A recent decision of the Fair Work Commission raised the significance of having a thoroughly detailed drug and alcohol policy in place, which clearly identifies conduct that will or will not be tolerated, and the ramifications of breaching the policy.
In Shane Clayton v Coles Group Supply Chain Pty Ltd  FWC 4724 (Coles), Mr Clayton lodged an unfair dismissal claim in relation to his employment in the operation of various forms of manual handling equipment. Mr Clayton’s role required him to hold a high risk license.
In January 2016, Mr Clayton was involved in a forklift incident at work with another employee. While there was no damage to persons or property, and it was agreed that Mr Clayton was not at fault, he and several other employees undertook an on-site oral fluid drug test. The results found THC in his blood and indicated that it was most likely Mr Clayton had taken cannabis the morning of the incident. However, the results did not demonstrate any evidence that Mr Clayton’s performance was impaired. While Mr Clayton did not dispute smoking cannabis, he disputed the timing of the allegation, and claimed he consumed the illicit substance the evening prior to the incident.
After a disciplinary meeting in February 2016, Mr Clayton was dismissed without notice on the basis of a breach of Coles’ drug and alcohol policy. Under Coles’ Code of Conduct, which underpinned the policy in question, the company had a zero tolerance for illicit drugs. The policy also allowed for disciplinary action to commence in the case of a breach (including termination), as each employee was required to be ‘fit for duty’ and the presence of drugs or alcohol in their system did not equate to being fit for duty. Accordingly, in line with the Code of Conduct and Managing Team Member Performance and Behaviour guidelines, Mr Clayton was dismissed.
Mr Clayton argued his dismissal was unfair on the grounds of:
- his breach of the policy not being a wilful, substantial or deliberate disobedience, particularly as he was allegedly advised during his induction training that he only needed to ensure he did not smoke marijuana within 3 to 6 hours of beginning his shift (which he did not do);
- the testing results allegedly being potentially flawed;
- his consumption of cannabis was linked to workplace stress and formed part of his strategy to manage his stress; and
- Coles allegedly failing to consider alternatives to dismissal.
In determining whether the dismissal was harsh, unjust or unreasonable, the Commission applied the principles of the Full Bench decision in Harbour City Ferries Pty Ltd v Toms (Toms). In Toms, it was held that a zero tolerance of drugs or alcohol in a company’s policy may be reasonable. It also decided that a failure to comply with the policy would give heavy weight in concluding whether there was a valid reason for dismissal or not. In light of this, and deeming Mr Clayton’s conduct as reckless and misleading to Coles, the Commission hence found that a failure to comply with the company’s drug and alcohol policy was deemed a valid reason for dismissal and was not harsh, unjust or unreasonable.
Lessons for employers
Employers should be aware that it is reasonable to dismiss employees found under the influence of drugs or alcohol despite showing no impairment. Employers should ensure their company’s drug and alcohol policies are:
- well-drafted – this includes stipulating what is considered as acceptable and unacceptable behaviour, and what may be done in instances of such unacceptable behaviour, including any forms of disciplinary behaviour such as dismissal;
- clearly communicated to all staff – this may involve circulating the policy, holding briefings or meetings regarding the policy and offering employees the opportunity to clarify any queries; and
- consistent – meaning that the information around the application of the policy is consistent. In this case, the Commission did not accept Mr O’Sullivan’s allegation that he was informed during his induction training that he only needed to ensure he did not smoke marijuana within 3 to 6 hours of beginning his shift. Instead, the Commission accepted Coles’ contention that its induction training directly mirrored what was stated in the policy (a zero-tolerance policy).
Author: Stamatina Theodorakopoulos
Charles Power, Partner
T: +61 3 9321 9942
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
Michael Selinger, Partner
T: +61 2 8083 0430
Rachel Drew, Partner
T: +61 7 3135 0617
Justine Ansell, Special Counsel, Brisbane
T: +61 7 3135 0507
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