The Fair Work Commission (FWC) has upheld the decision of a mining company to terminate the employment of a female employee after testing positive for methylamphetamine on a mine site and potentially putting herself and her co-employees at risk.
Not unfairly sacked
Ruling on the unfair dismissal claim of Tara Leah Cunningham, who was employed as a truck driver by Downer EDI Mining when she failed a random drug test at the company’s Boggabri open-cut coalmine in northeastern NSW, Commissioner Ian Cambridge said Cunningham had not been unfairly sacked for drug use at work.
According to Commissioner Cambridge, Downer EDI Mining has appropriately viewed Cunningham’s test result, which showed levels of methylamphetamine in her urine at four times above the minimum detection level, as a serious risk to the safety of its employees.
Militant union slammed in ruling
At the same time, Commissioner Cambridge, who used to be a national secretary of the Australian Workers Union, slammed the choice by the Construction Forestry Mining and Energy Union (CFMEU) to represent Cunningham in this case.
“It was highly regrettable to observe during the hearing that an organisation, which apparently conducts campaigns which strongly advocate safety in the workplace, could contemplate a proposition which, in effect, would countenance a person driving a 580-tonne truck whilst having methylamphetamine in their body at a level four times the reportable cut-off figure,” Cunningham said in his ruling.
“Any realistic and responsible pursuit of the case on behalf of the applicant should have been confined to the development of evidentiary support for the applicant’s explanation for the presence of the methylamphetamine. Indeed, much greater energy and focus should have been devoted to such an evidentiary position rather than any attempt to defend the indefensible.”
In her claim, Cunningham insists she had been a victim of drink-spiking, allegedly by two unknown men whom she had met the Saturday night before she tested positive on her Wednesday shift.
The CFMEU, representing Cunningham in a bid to have her reinstated to her old job, said that on the day she went to work, she had been feeling well and was not under the influence of any illicit substances. According to CFMEU legal officer Keenon Endacott, the onus of proving she was actually impaired by methylamphetamine on that day rests with the employer. Endacott also claimed that summary dismissal would still not be justified even if Cunningham had willingly and knowingly taken the drug.
The CFMEU has long been known for opposing drug testing in the workplace, waging costly legal battles against it over the years. The militant union continues to portray workplace drug tests as a “slur” on workers, even though they have proven an effective means of fulfilling an employer’s occupational health and safety obligations.