Sacked after a drug test showed cannabis 19 times over the limit

What happened

Mr Masters started work with Wilmar Sugar as a full-time IT project manager in early 2019. By late 2020 his managers had concerns about his work. He was given a "Developing/Needs Improvement" rating for 2020, and in February 2021 he was placed on a coaching plan covering his performance and attendance.

On 27 April 2021 two employees reported that, in the head office, he had been slurring his speech, swaying, closing his eyes for long periods while talking and asking the same question several times. He was stood down while the company investigated, and in reply raised his workload and a lack of management support. On 12 May 2021 the company decided there was insufficient evidence to take disciplinary action. It did, however, give him a written warning that day for not attending work on 3 May because he "didn't feel like coming in".

Mr Masters was then off work from 17 to 21 May 2021 after, he said, tripping over his cat and breaking his ribs. When he returned on 25 May, the company asked him to take a drug and alcohol test with an external provider. He agreed and signed a consent form. Two saliva tests came back non-negative, so a urine sample went to a laboratory. It confirmed opiates, consistent with the codeine he said he took for his ribs, and cannabis at 967 ug/L. The company's Fit for Duty Procedure set the cut-off at 50 ug/L.

The show cause letter and the dismissal

On 2 June 2021 Wilmar sent him a show cause letter, which asks an employee to explain why they should not be dismissed. The letter said the results amounted to serious misconduct and a failure to meet the Fit for Duty requirements.

Mr Masters replied the next day. He said the cannabis result had shocked him, and that he later learned he had unknowingly eaten cookies containing cannabis. His partner gave evidence that the cookies came home from a 40th birthday party in Canberra. He offered to undergo ongoing testing. On 15 June 2021 Wilmar dismissed him, paying four weeks' wages in lieu of notice.

The claim

Mr Masters applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). He argued there was no valid reason because he was not under the influence when tested, that there was no reasonable cause to test him, that any cannabis was consumed unintentionally, and that the company had been targeting him. Wilmar said its requirements "do not focus on the perceived impairment of the individual, but on levels that are acceptable to the business".

Why: the legal test

Under s 387, the Commission weighs several factors in deciding whether a dismissal was harsh, unjust or unreasonable. The first is whether there was a valid reason related to the worker's conduct or capacity: one that is "sound, defensible or well founded". The Commission decides for itself, on the evidence, whether the conduct happened.

When the reason is a breach of a workplace policy, a Full Bench has said the breach will not be a valid reason if the policy is illegal, unrelated to the job, or unreasonable. In Sydney Trains v Hilder [2020] FWCFB 1373, a Full Bench drew a key distinction: a worker dismissed for attending work with a banned level of drugs in his system is not dismissed for being visibly affected. Whether he was impaired, or meant to breach the policy, goes to whether dismissal was a proportionate response, not to whether there was a valid reason.

What the Commission decided

Commissioner Matheson found Mr Masters knew of the procedure and failed the test. The concerns about his behaviour, attendance and performance met the procedure's criteria for reasonable cause testing, and the Commission rejected the claim that he was targeted. Because the reason for dismissal was the policy breach, his lack of visible impairment and his claim of accidental use were not relevant to whether there was a valid reason. The procedure was lawful, related to his work and reasonable: drug and alcohol policies are "an unremarkable feature in Australian workplaces".

The process was fair. He was told of the result, given a chance to respond and his response was considered. His request for his sample to be retested by another laboratory came only after he had been told of his dismissal.

On the other matters, the Commission found his record was not unblemished, given the written warning. Two or three cookies the night before did not persuade the Commission that they explained a result over 19 times the limit. The Commission gave no weight to a medical report the company had obtained, finding it unclear, but said the laboratory result was clear. Dismissal was not a disproportionate response, and the application was dismissed.

What this means for you

If your workplace has a drug and alcohol policy with cut-off levels, a positive result above those levels can be a valid reason for dismissal even if you felt fine and did not mean to take the drug. Read the policy, including any right to have a split sample retested, and use that right promptly, before a decision is made. If you are asked to show cause, give a full and accurate explanation, supported by evidence where you can. For employers, the case shows the value of a clear written policy, testing that follows its own criteria, and a genuine chance to respond. Unfair dismissal applications must be lodged within 21 days of the dismissal.