A recent ruling by the Fair Work Commission shows that a worker’s summary dismissal for drug use in safety critical work environments is lawful, even when the termination process lacks procedural fairness.
Worker failed first test, passed second
The ruling by Commissioner Chris Platt concerned the case of an Ensign Australia Pty Ltd derrickhand who was sacked from his job on a drilling rig at the Santos Moomba gasfields after testing positive for methamphetamine, THC and amphetamine.
The worker, however, passed a second drug test administered by Ensign. Nevertheless, Ensign still summarily dismissed the worker based on the first test, after determining that there were signs the second sample was diluted.
The worker contested his dismissal before the FWC, saying it was harsh, unjust and unreasonable. He also argued that there were procedural lapses on the part of Ensign. He claimed that Ensign, for one, did not give him the opportunity to respond to the results of the test. For another, Ensign did not investigate how valid the tests were. When he was initially picked for random testing, it wasn’t done in keeping with the fitness for work policy of the company.
Commissioner Platt, however, said the worker’s claims “overstated the onus on the employer”. His ruling also said that the “procedural deficiencies” committed by the employer were outweighed by the “very serious nature of the misconduct”.
“The evidence before me is that risks to safety in the drilling industry are high, a lapse in judgement can result in serious injury or death,” Commissioner Platt said. “In my view, the prejudice resulting from of the procedural deficiencies is outweighed by the need to ensure a safe workplace.”
Read the FWC ruling in its entirety here.
The importance of following procedure
This case illustrates how important it is for employers to observe the procedures—especially for employee dismissal—as stipulated in their workplace drug and alcohol policy. Even workers who return positive drug tests have the right to procedural fairness. Any termination process that arises from a failed drug test should observe procedural fairness. Anything less than that, and employers are likely to be at the receiving end of a legal complaint, and lose.
Had Ensign belonged to an industry that isn’t safety-critical, the FWC ruling could have gone another way. Many seemingly sure-fire legal cases have been derailed because of one technicality, after all.