Last month, the Fair Work Commission upheld a decision to dismiss an employee for breaching its zero tolerance policy on illicit drugs, confirming the importance of having a clear drug and alcohol policy that is effectively communicated and consistently applied.

The employer, Coles Group Supply Chain Pty Ltd (Coles), summarily dismissed Shane Clayton who tested positive to cannabis, in breach of Coles’ drug and alcohol policy, which clearly stipulated cut-off levels of alcohol intake and a zero tolerance to illicit drugs for any person employed “at any Coles Distribution Centre in any position.”[1]

Whilst the fairness of a dismissal for breaching a zero tolerance policy is ultimately for the Commission to determine, taking into account the nature of the workplace, the risks associated with employees working under the influence of alcohol or illicit drugs and the absence of an appropriate objective test for impairment, the case confirms that an important consideration is the language of the policy.[2] In this case, Coles’ policy stated that it was directed to providing “a conclusive (positive/negative) result and not to establish[ing] the extent to which a person may be impaired from performing work tasks.”[3] It also clearly stated that a positive test for illicit drugs could result in dismissal.

Commissioner Hampton’s reasoning is consistent with other decisions of the Commission, including the Full Bench’s decision in Toms v Harbour City Ferries Pty Ltd [2015] FWAFB 6249, which focused on “obedience to the policy”, rather than whether the drug test established that the worker was ‘impaired’ (in a scientific sense) as a result of drug use.[4] Commissioner Hampton noted that it was neither reasonable nor workable to expect Coles “to ascertain exactly when the drugs were consumed, or their quantity and potency”.[5]

In this case, Coles’ clear zero tolerance policy, communication of the importance and consequences of breaching the policy, and consistent application of the policy, led Commissioner Hampton to conclude that there was a valid reason for Mr Clayton’s dismissal. Commissioner Hampton then considered whether there were any mitigating factors.

The first of the mitigating factors raised by Mr Clayton was his consumption of the drug to assist him to cope with work-related stress and to sleep.[6] Whilst this factor was relevant, it had to be assessed in the context of Coles’ drug and alcohol policy, which encouraged self-reporting without sanction.[7]

Commissioner Hampton did warn that:[8]

There are potential dangers for an employer in providing information about detection periods to the extent that this information might detract from the zero tolerance message in the policy itself. It may also, depending upon the overall information actually provided, be misleading given the variations that exist between individuals and the unpredictable potency of various illicit drugs.

However, in this case, whilst windows for detecting cannabis with oral testing were discussed, they were provided by Coles as an indicative guide only and the message that no employee was to attend for work with any detectable illicit drugs in their system was clear and understood.[9]

Key take-aways for employers:

  • A zero tolerance policy may be reasonable, depending on the nature of the workplace and the risks associated with the particular work;
  • The policy should be framed in the language of test results, rather than impairment;
  • Out of an abundance of caution, no references to windows of detection should be made;
  • The importance of compliance with the drug and alcohol policy should be stressed to employees, along with the disciplinary consequences that may follow upon a breach;
  • The policy should be consistently enforced; and
  • The personal circumstances leading to the employee’s consumption of the drug should be taken into account.

[1] Clayton v Coles Group Supply Chain Pty Ltd [2016] FWC 4724, [44], referring to the ‘Standards’ section of Coles’ drug and alcohol policy.

[2] Ibid [90].

[3] Ibid [44] referring to the ‘Principles’ section of Coles’ drug and alcohol policy.

[4] Ibid [87] referring to Toms v Harbour City Ferries Pty Ltd [2015] FWAFB 6249, [27]. We note that the basis for the testing (i.e. pre-employment, for cause, immediately following a serious incident or random) was not disputed in this case (Ibid [46]).

[5] Ibid [113].

[6] Ibid [108].

[7] Ibid [109].

[8] Ibid.

[9] Ibid.

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