Drugs and Procedural Fairness

In Albert v Alice Springs Town Council [2017] FWC 73, the employee, a Concrete Finisher named Mr Albert, made a claim of unfair dismissal against his former employer, Alice Springs Town Council. Mr Albert had been an employee of the Council for almost 3 years before he was dismissed for testing positive to drugs.

The Road Accident

As part of his work, Mr Albert was required to drive a Council truck. On 20 July 2016, Mr Albert drove the Council truck, with a passenger, but was hit by another vehicle. The collision was not the fault of Mr Albert. The other vehicle had disobeyed a give way/stop sign and hit the Council truck.

The First Drug Test

A supervisor at the Council then attended to Mr Albert at the scene of the accident. However, the supervisor then took Mr Albert to a pathology service for drug testing on the orders of a Council manager. The drug test came back positive with THC, a cannabis constituent.

Upon receipt of the positive test result,the Council immediately suspended Mr Albert. A meeting with Mr Albert was called, whereby the Council explained to Mr Albert that it had a duty of care to him, his work colleagues, and the general public.

The Second Drug Test and Termination

The Council then sent Mr Albert’s drug sample to a Perth centre for confirmation. It came back positiveagain and, this time, stating that the level of THC was 73 times the acceptable rate. Mr Albert’s employment was then terminated within a few days.

The Fair Work Commission’s Decision

Mr Albert did not dispute the drug test results but the manner in which his dismissal was handled. He was not given an adequate opportunity to respond. Further, his suspension and dismissal happened over only a few days even though the road accident was not his fault and even though the Council usually provides a drug rehabilitation program to its employees.

The Fair Work Commission held that the Council had a valid reason to dismiss Mr Albert, considering the reputation of the Council being upheld, the nature of Mr Albert’s role of handling heavy vehicles and the excessive positive drug result that was 73 times that which would be acceptable.

However, the Fair Work Commission also held that Mr Albert was not properly provided with an opportunity to respond. Mr Albert was not provided with a copy of his drug test results. He was not even allowed to see the report until the termination meeting, and, even then, he was not allowed a copy to take home with him. That the second drug test showed an excessive positive result was not explained to Mr Albert either. Further, Mr Albert was not informed until the termination meeting that the Council proposed to terminate him. Mr Albert had not been afforded procedural fairness.

Nevertheless, the Fair Work Commission found that the circumstances of the case, the seriousness of the drug test results and that Mr Albert was required to drive heavy vehicles, justified the dismissal and that procedural fairness would not have changed the outcome. Therefore, the unfair dismissal claim failed.

Lessons to be Learnt

Our unfair dismissal solicitoradvise that employees should know that they are entitled to procedural fairness, which includes the right to respond to allegations at work. However, the right to procedural fairness does not equal a right to retain one’s job where serious misconduct has been committed.

For employers, they should note that procedural fairness, even when the employee has committed misconduct, should be followed, at least so that the employer is not asked to justify its decision again before the Fair Work Commission.

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