Worker’s compensation claim rejected as worker fails drug test

3 November 2017

The City of Salisbury construction maintenance employee was required to undergo a random drug test in the middle of his shift. The worker claimed he slipped and injured his left shoulder in a toilet just prior to entering the drug testing centre.

The worker failed to report the injury and so his drug test continued as planned and he tested positive for methamphetamines. This being in breach of the company drug policy, the worker was dismissed for serious and wilful misconduct. As the shoulder injury was sustained at work, the worker then applied for worker’s compensation.

In a hearing before the South Australian Employment Tribunal (SAET), the Local Government Association Workers Compensation Scheme argued that it was dubious that the worker was injured as alleged, suggesting that the worker knew he would fail the drug test and staged the fall to either avoid the test or to make a worker’s compensation claim in the case that he was dismissed. The SAET further argued that it did not have an obligation to pay the worker lost wages because he had breached his obligation of mutuality due to a breach of company drug policy.

Mutuality, in this case, refers to the reciprocal agreement between the two parties in the employment contract. Examples of can constitute an employee breaching the obligation of mutuality as per the Return to Work Act 2014 (SA) (the Act) include engaging in serious and wilful misconduct, unreasonably resigning from employment and failing to participate in return to work plans. A breach of mutuality can render employees ineligible for worker’s compensation payments.

Mutuality can be restored if a worker demonstrates that they are “ready, willing and able” to return to work, including by gaining alternative employment.

The worker told the SAET that he was “gobsmacked” by the positive result and that he must have unknowingly ingested the methamphetamine by smoking contaminated marijuana. He did not concede serious and wilful misconduct nor a breach of mutuality but argued if the breach occurred, he had restored mutuality by obtaining alternative employment. As such, the worker contended that he was entitled to weekly payments either from the date of injury or the date mutuality was restored. If mutuality was found not to have been restored, he claimed he was at least entitled to compensation of his past and future medical expenses.

Deputy President Judge Peter Hannon accepted that the worker sustained the injury as claimed, granting him entitlement to past and future medical expenses as per s33 of the Act. Deputy President Judge stated that the worker’s use of illicit drugs created the potential for serious harm to himself and his co-workers and found the worker’s misconduct warranted dismissal and constituted a breach of mutuality, thus disentitling him from weekly compensation payments. In making this decision, he considered the worker’s gaining of alternative employment insufficient to restore mutuality and wasn’t satisfied the worker had attempted to address his issues with illicit drugs.

Recommendations for employers:

  1. Ensure you have a statutory and regulatory compliant Drug and Alcohol policy in place which sets out the requisite procedures
  2. Conduct immediate and thorough circumstance investigations after injuries occur. Depending upon the circumstances, instructions may need to be provided by a firm of solicitors in accordance with legal professional privilege
  3. Engage a private investigator if you have reason to believe a worker may be engaging in deceptive behaviour or concurrent employment that impacts his or her contract of employment
  4. Challenge workers compensation claims where there are grounds to believe they are not genuine, fraudulent or relate to serious and wilful misconduct

Hentys Lawyers specialises in workers compensation claims management, assistance and advice and can assist and advise employers throughout the entire claim and legal processes.

Sacco v Local Government Association Workers Compensation Scheme [2017] SAET 130