drug and alcohol policy

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.

Under work health and safety laws across Australia, employers have an obligation to provide employees and others (including the public) with a safe workplace.  At the same time, employers are also required to treat their employees fairly, particularly when terminating their employment[1].

Fulfilling both obligations simultaneously often creates a difficult task for employers,

In 2012, we referenced a case in which a complainant, terminated for breach of his employer’s drug and alcohol policy, failed to establish that the termination was discriminatory: 2012 AHRC 7. The policy at issue in the case distinguished between employees who had voluntarily disclosed addictions and those who were identified only after a