On January 25th this year, Shayne Clayton was involved in a forklift incident at a Coles distribution centre where he worked as a forklift driver.
Despite being cleared of fault with regard to the incident, Clayton later returned a positive result for cannabinoids during an on-site fluid drug test – a finding which was subsequently confirmed by a further test.
One week later, Coles held a disciplinary meeting in which Clayton was given an opportunity to show cause as to why he should not be sacked. Following this, the company terminated his employment without notice or payment in lieu.
Clayton appealed to Fair Work Australia and claimed unfair dismissal. He argued that he had been advised during induction that he needed to ensure that he did not smoke marijuana within three to six hours of the commencement of his shift (which he argued that he had complied with) and that he had reasonably believed that he had complied with Coles’ drug and alcohol policy by leaving a considerably longer gap between his consumption of cannabis and his attendance at work. He also claimed that his marijuana consumption was linked to workplace stress and was part of a strategy to manage that stress.
That appeal was dismissed. Courtesy of the high-risk nature of the workplace, the further risk posed by illicit substance impairment on the part of workers and the lack of an objective test for determining the level or otherwise of Clayton’s impairment, the Commission found it was reasonable for Coles to have a ‘zero tolerance’ policy for drug and alcohol impairment whilst at work. In addition, it said, Coles had observed procedural fairness by notifying Clayton of the reason for his dismissal, enabling him to be accompanied by a support person in discussions concerning matters leading up to his dismissal and affording him proper opportunity to respond to the allegations.
As for Clayton’s argument about the information given during induction, the Commission acknowledged the potential dangers associated with such a message but found that this was given as an indicative guide only rather than a hard and fast rule. Further, it noted that the responsibility of workers not to attend work whilst impacted in any way by drugs was clear and well understood and that Clayton had been advised that he should stay home if in any doubt about whether or not he was under the influence of narcotics.
Moreover, with Clayton having consumed cannabis on the morning before his shift, it found there was no reasonable way he could have been confident that his system was clear of cannabis. As such, the Commission deemed that he had therefore acted recklessly at best with regard to Coles’ zero tolerance policy toward illicit substance influence whilst at work.
Whilst this case relates to a warehouse environment, it raises interesting questions for workers and firms in construction about what needs to happen from a legal perspective when staff members test positive for alcohol or drugs. It also raises questions as to what should happen from a broader perspective of safety and well-being when someone does indeed return positive test results.
These considerations are particularly important in construction. In 2012, a study of 494 workers from within the sector undertaken by the Sustainable Built Environment National Research Centre found that 58 per cent consumed alcohol at hazardous levels whilst 32 per cent had used ecstasy or methamphetamine-type substances and 16 per cent had used cannabis in the past year.
From a legal perspective, Annie Smeaton, an employment lawyer and partner at Brisbane-based law firm Cooper Grace Ward, says what happens when a worker does test positive to alcohol or narcotic influence may be set out within an enterprise agreement or workplace policy. This procedure should outline critical information about the when and in what circumstances testing can occur, including that testing may be random, how testing will be performed and what happens when someone tests positive (including a range of consequences). It may also list the particular drugs for which tests will be performed.
Where they do go down the path of dismissal proceedings, Smeaton says employers must also observe procedural fairness for all employees covered by the unfair dismissal laws. Typically, the employer would initiate a show-cause process (usually in writing) which outlines appropriate information such as the test result itself, a description about how the tests were performed and the course of action the employer is considering as a result. Following this, the worker would be given reasonable opportunity to respond, to raise any mitigating factors and present their case as to why termination should not proceed. The employer would then consider that response and decide whether or not the termination should proceed.
When making their final call, Smeaton says employers should think about whether or not they still believe they have a valid reason for termination, any mitigating factors which the worker has raised and the degree to which they are satisfied that the test result is indeed accurate. Workers should be given an opportunity to have representation during any disciplinary meetings, she says, and it may be prudent to send samples relating to borderline test results to the laboratory for further analysis.
It should also be recognised, she said, that even where the employer has a valid reason for termination and has observed procedural fairness, the Fair Work Commission could still determine that the dismissal was indeed unfair according to the Fair Work Act where it considered that the termination was harsh, unjust or otherwise unreasonable. Typically determined according to judgement calls made by commissioners on a case-by-case basis, she said this could be the case depending upon factors such as the person’s age, how long they had been with the company and their ability to obtain alternative employment among a range of other factors relevant to the particular case.
Smeaton said the importance of having a clear drug and alcohol policy cannot be understated.
“In my view, having a strong policy that makes it very clear of the employer’s expectations, often zero tolerance, concerning drugs and alcohol in the workplace is really important,” she said.
Natasha Jager, national manager of workplace services at the Alcohol and Drug Foundation, agrees about the need for clear policies in this area. Jager says these policies should outline what can and would happen beyond the testing process should an incident occur, as well as what rights an employee has and some of the ways in which the company would assist workers who test positive. Not to have such policies in place, Jager says, could lead to situations in which different managers took different actions across the company and could potentially expose the employer to unfair dismissal.
Moreover, Jager said, it is important for companies to engage workers in regular communication about what the policy says and how drug and alcohol use can impair work performance.
“There are so many employers out there that say to their employees ‘sign to say that you’ve read this in induction and then you can go,’” Jager said, referring to drug and alcohol polices.
“It needs to go beyond that. It has to make sure that alcohol and drugs is a topic of conversation within the workplace more than just ticking the box at induction. And if they haven’t got a policy, I would be staying very clear of terminating or taking any action against the employee unless they have got a policy which says that they can.”
Beyond legal issues, there are questions about what should happen when workers test positive.
First and foremost, Jager said, it is imperative to remove the individual from any situation in which they represent a danger to either themselves or others. It is also critical to ensure they are able to get home safely and have access to immediate support where appropriate.
Beyond that, she says it is imperative that there are consequences. Were this not to happen, she says, it would send a message not only that drug and alcohol influence within the workplace is tolerated but also that safety is not important.
Exactly what these consequences should be varies according to each situation and the nature of risks within the workplace concerned as well as the relative seriousness of the offence, Jager says. Rather than necessarily go down the path of instant dismissal, she encourages employers to instead think about giving workers a chance to understand where they went wrong and to look at how they can help the worker in question.
Jager also encourages employers to complement testing with other strategies such as education, support and communication. With respect to the Coles case, she says this represents an opportunity for employers and workers to sit down and look at what caused the problem as well as some of the things which Clayton and even Coles themselves as an employer could have done differently.
Smeaton agrees that appropriate action will vary according to the nature of the workplace and severity of the case. Where you are dealing with a high performing and longstanding employee who had tested positive in a borderline case, for example, then the employer may well decide that the individual was in fact a person they did not wish to lose.
Still, she agrees that some consequence should arise and suggests that counselling or diversionary programs may be an option.
Problems associated with drugs and alcohol on construction sites can pose serious hazards to workers and their colleagues.
The issue of what can and in fact should be done where a worker tests positive is one with regard to which employers would be advised to exercise great care.