Inadequate drug policy leads to reinstatement of drug using employee

In the case of Lee Witherden v DP World Sydney Limited [2025] FWC 294, the Fair Work Commission (FWC) ordered the reinstatement of a stevedoring employee who returned a positive drug test that showed recent cocaine use and who provided “inaccurate” evidence during the hearing.

Key message for employers

• This is just one of several recent FWC cases demonstrating that there needs to be a rational connection between the relevant policy obligations (i.e., a ‘zero tolerance’ drug and alcohol policy) and the safety concern that it addresses.
• Strangely, it is not enough anymore to have a ‘zero tolerance’ drug and alcohol policy even in a safety critical work environment.
• Drug and alcohol policies should clearly identify if the relevant testing result would correlate to actual impairment (leading to a safety issue) as a result of the relevant substance use. Tests that merely indicate some level of prior use (without any direct impairment) may not be enough anymore.
• Additionally, employers are (again) on notice that where there are signs of a mental health concern, they may be held to a higher duty to offer and provide support to employees who may have otherwise contravened policies.

Relevant facts

The employer had a Alcohol and Drug Policy (Policy) that set out the employer’s ‘zero tolerance’ approach to drug use, albeit with a discretion to offer rehabilitative support for employees with drug dependency issues.

In conjunction with the Policy, the employer also had a ‘Fit for Work’ critical safety commitment that “the employee expectation that ‘I will be drug and alcohol free at work and advise of any injuries, medications or medical conditions that could impede my ability to do my job safely, before I commence work‘”.

The employee was employed as a stevedore and had been employed for about 25 years. He had had two warnings over that time, but no contraventions of the Policy.

In May 2024, following a random drug test at work, he returned a high reading of cocaine metabolites.

The employer ultimately dismissed him for breach of the Policy and a resulting loss of trust in him.

The employee lodged an unfair dismissal application seeking reinstatement.

Key points from hearing

The employee gave evidence that he had been self-medicating with cocaine whilst recovering from a workplace shoulder injury that had caused him considerable pain. He admitted he had used it heavily over the course of three days when not at work, and ceased using 24 hours before his next shift.

Expert evidence at the hearing set out that the active constituent of cocaine leaves the body within three hours, but that its metabolites “stay around much longer”.

The employer’s expert “agreed that [the employee] would not have been intoxicated (i.e. acute impairment), however he disagreed that there would not have been some form of withdrawal impairment in the days following his heavy use of cocaine.”

Findings

Deputy President Wright found that while there was a valid reason for the dismissal, the dismissal was nevertheless harsh, noting:

• She rejected the employer’s claim that it had loss trust and confidence in the employee “because of a single breach of the Policy”, noting that the breach did not involve using cocaine on the day he was at work and not being involved in any safety incidents;
• The employee had received two warnings over his 25 years of employment with the employer;
• He had not previously breached the Policy;
• The reason for the breach “was not because he attended work while intoxicated but because he tested positive to non-active metabolites”;
• The Policy did not explain that drug tests also test for inactive metabolites, and that these cause a positive result after the drug has left his system; and
• His cooperation with the disciplinary process, admitting to his use of high levels of cocaine.

The Deputy President also considered that the Policy provided a discretion “to refrain from taking disciplinary action against an employee who tests positive, particularly if alcohol and/or other drug dependency issues are present”. On this she noted that the employee had disclosed mental health issues relating to his drug use, and considered that this “should have prompted consideration of whether rehabilitation support would be offered to [the employee] under the AOD policy.”

The Deputy President also noted that the employee’s evidence was that while he was generally aware of the Policy, the employer did not explain to him what it means to be ‘fit for work’ under the Policy. Critically, it was held that the employer “never explained to [the employee] the significance of cut-off levels and how the Australian Standards apply”.

The employer was ordered to reinstate the employee including providing for continuity of service. However, the Commission did not order that the employee receive backpay as a result of the employee’s “inaccurate” evidence throughout the hearing.

The case serves as both a reminder and indication as to how the FWC will deal with cases involving drug use (with or without impairment) in conjunction with mental health issues. Employers should always remember to make sure their fitness for work policies clearly explain the link between the policy requirement and any safety critical aspects of the role.