Light duties no excuse for breach

14 May 2018

In a recent decision by the Fair Work Commission an employer’s drug and alcohol policy was ruled to apply to a truck driver – even during the period he was performing light data entry duties.

In Australia, by way of their statutory health and safety responsibilities, employers bear the responsibility for managing an increasingly substance dependent workforce.

According to a Flinders University study, substance abuse results in 11.5 million days lost each year – costing employers $6 billion.

In response, employers have found success fostering a ‘safety culture’ including through the implementation of ‘zero tolerance’ policies to drugs and alcohol in the workplace. Two such policies were put to the test in the cases below.

Mallia v Toll Transport Pty Ltd (TOLL)

Paul Mallia worked at Toll’s Port Melbourne freight facility, which was high traffic and high risk, with high volumes of truck traffic, pallet movers and forklifts.

Although employed as a truck driver, Mr Mallia was on light duties performing data entry when he was randomly selected for a drug and alcohol test pursuant to the Toll Group – TWU Enterprise Agreement, Drugs and Alcohol Policy (Policy) and Toll Standard.

Mr Mallia showed a positive result for opiates, and lab confirmation testing found his sample contained 10 times the acceptable level of a different illicit substance, being methamphetamines.

Prior to his termination of employment, an investigation was conducted into the circumstances surrounding the positive test and Mr Mallia was invited to show cause why his employment should not be terminated on that basis.

Pursing an unfair dismissal claim before Commissioner Michelle Bissett, Mr Mallia unsuccessfully argued that:

  1. The Policy did not apply, as Toll had an alternative drug and alcohol policy in place (however, Mr Mallia was unable to produce the alternative policy)
  2. The independent testing facility had spiked his sample and failed to adhere to the Australian National Standards for testing (however, the facility provided evidence to the contrary); and
  3. Even if he had been affected by drugs at work, Toll had previously not dismissed but provided rehabilitation services to two other employees in similar circumstances (however, Mr Mallia was unable to provide details of those employees).

On all the evidence, the Commissioner found Mr Mallia to be an unreliable witness. She considered that Toll had adhered to its obligation to provide Mr Mallia procedural fairness, and that his employment had been validly terminated due to his positive drug test.
Although Mr Mallia was working on light duties, this did not alter his obligation to comply with the relevant policies.

Green v Lincon Logistics Pty Ltd (Lincon)

This should be contrasted to another case, whereby the Fair Work Commission found that the employer had unfairly dismissed an employee by directing him to undergo blood testing when this was not specifically provided for in the drug and alcohol testing policy.

Shannon Green had initially submitted to a urine test – however when he was told that he was required to undergo a further blood test, he failed to attend.

Lincon then dismissed the employee for failure to adhere to a reasonable management direction.
In finding that the dismissal was unfair and awarding compensation to Mr Green, the Fair Work Commission noted the following factors:

  1. The policy did not specify what method of drug and alcohol testing could be used;
  2. The policy was ambiguously drafted, with some terms left undefined; and
  3. Mr Green had been directed to undergo blood testing, which was unreasonable as it was not the normal process 

Reducing the risk

  1. Have your drug and alcohol policy drafted by a professional, to ensure that it is procedurally fair, clear and that the terms are properly defined.
  2. If you are operating in a high risk industry, implement a zero tolerance policy and extend this to all staff – even those not performing safety-sensitive roles.
  3. Consult with employees prior to implementing the policy, and take care to explain its objectives, methods for testing selection, testing procedures and consequences for policy breach
  4. Keep a register of all employees who have received a copy of the policy, and who have attended policy training.
  5. Use a qualified independent facility to conduct testing.
  6. Provide procedural fairness to employees who produce non-negative test results, even where a zero tolerance policy is in place.
  7. Be aware that employers may be obliged to recognise drug and alcohol dependencies as treatable conditions. 

Our highly experienced workplace relations team can assist you in drafting a compliant policy, training your managers and staff, enforcing the policy and defending any arising claims.