Allegations of intoxication by colleagues
An IT Project Manager was hired by a sugar company in 2019. In April 2021, the IT General Manager and the HR Manager met with the project manager to advise him of allegations raised by two colleagues and that an investigation will be commenced.
Investigation by the company
A month later, the project manager was called to a meeting where an allegation letter was presented to him. The investigation by the sugar company showed that at a meeting on 27 April 2021, the project manager exhibited slurred speech, closed his eyes for long periods of time whilst talking, repeated questions without realising he had asked the same question several times, and swayed while standing in place. All these observed behaviours led the other employees to believe that the project manager was under the influence of alcohol or drugs whilst at work.
The project manager responded to the allegations, saying he had an enormous workload and felt pressured; there was a lack of support from the management; and the management did not take into account his personal circumstances.
No disciplinary action due to insufficiency of evidence
The sugar company found that there was insufficient evidence to take disciplinary action. The project manager was allowed to return to work without imposing the condition that he pass an alcohol or drug test to show he was fit to work.
Requirement to undergo drug and alcohol test
Instead of returning to work immediately, the project manager went on personal leave to recuperate from broken ribs sustained as a result of tripping over his cat. When he returned to work 5 days later, the sugar company directed the project manager to undergo a drug and alcohol test from an external testing company.
Positive for high level of cannabinoids
The first two saliva tests showed positive for cannabinoids and opiates. As a result, a urine test was administered and the urine test confirmed that the project manager had cannabinoids and opiates in his system. The report from the laboratory that did the test stated that the opiate test result indicated a pattern consistent with the ingestion of codeine as pain medication in relation to his broken rib injury. However, the cannabinoid test result indicated a level of 967 ug/l 19 times higher than the level allowed for the sugar company’s Fit for Duty Procedure.
Fit for Duty policy
The Fit for Duty Procedure is part of the employment agreement signed by the project manager upon his hiring. The procedure required employees to possess the physical or mental condition that allows the company to reasonably expect them to undertake a task without incurring unacceptable risks to the health and safety of the employees or others affected by the employees’ activities.
Reasonable cause drug testing under the Fit for Duty policy
Under the Fit for Duty Procedure, the employees agree to self-testing or the company may require a “reasonable cause” testing, random testing or management plan testing. The “reasonable cause” testing may be carried out when an employee’s behaviour raises concern regarding their fitness for duty. These behaviours include: erratic, abnormal or unusual behaviour, near hits or incidents where safety is compromised; deteriorating job performance, or appearance or odour that warrants assessment. A positive drug test result will subject an employee to disciplinary action.
Allegation letter and show-cause letter
A month later, in June 2021, the general manager and HR manager met with the project manager once more to advise him that the sugar company was considering terminating his employment and he was given the opportunity to show cause why his employment should not be terminated.
Unintentional ingestion of marijuana cookies
In his response, he stated that the opiates in his saliva and urine were understandable as he was prescribed the painkillers as a result of his accident which occurred days before the drug test. However, the project manager said he could not account for the cannabinoids but he surmised that he might have ingested cannabis oil from cookies he had consumed prior to his drug test.
Dismissed for serious misconduct, failure to meet Fit for Duty requirements
The sugar company dismissed the project manager on the ground of engaging in serious misconduct and for failing to meet the Fit for Duties requirements of the company. He was paid notice in lieu of.
Application for unfair dismissal
In the project manager’s application for unfair dismissal, he alleged that at the time he was directed to take the alcohol and drug test, there was no valid reason for the test as he did not exhibit any signs of intoxication or being under the influence at the time that the tests were conducted. The drug test and his dismissal were part of the company’s witch hunt. He also claimed that despite the positive drug test result, there was no evidence of impairment or intoxication and for all he knew, the drug test detected only residual or trace elements.
Cannabinoid levels were unacceptable to the company
The sugar company in its defence stated that the high levels of cannabinoids and opiates in the project manager’s urine cannot be explained by the reasons that the project manager provided in his response to the allegations.
Reasonable cause existed because of habitual absenteeism and poor work performance
In the project manager’s performance evaluation in December 2020, prior to the investigation for alleged intoxication whilst at work, he had received a rating of “Needs Improvement” which resulted in him being placed under a coaching plan in February 2021. The project manager had been frequently absent and his performance was poor.
FWC found project manager unfit for duty
The Fair Work Commission found the project manager to be unfit for duty because of the drug test results. It also found there existed reasonable cause to have the project manager undergo the drug test: there was a report from his colleagues regarding his erratic behaviour; the project manager had deteriorating work performance related to absenteeism; and the project manager had been placed on a coaching plan. These were reasonable cause to direct the project manager to be tested.
Termination relied upon test results alone
In terminating the project manager, the company did not rely on whether he arrived at work exhibiting behaviours that raise concerns about his intoxication. He was dismissed because the levels of cannabinoids found in his urine was 19 times beyond that allowed by the company. That was not a level of cannabinoids that was acceptable to the sugar company.
Symptoms of intoxication or impairment were not relevant to termination
In terminating the employment of the project manager, the sugar company did not rely upon signs or symptoms of impairment and intoxication on the day he arrived for testing or on the day he arrived at work. What was considered was that the test result was beyond what the company could accept. The Fit for Duty procedure was not unreasonable but a preferable, appropriate and best practice policy.
Whether ingestion of drugs was intentional or unintentional, irrelevant
It did not matter whether the project manager failed the drug test because he intentionally ingested drugs or not. The only thing that the sugar company considered was the test result which showed that the levels in the project manager’s urine was not acceptable.
Sugar company adhered to requirements of procedural fairness
The project manager had been informed of the reasons of his dismissal. He had been given an opportunity to respond to the valid reasons related to his capacity or conduct at work. Having high cannabinoid levels is a failure to meet the requirements of the Fit For Duty Procedure and this amounted to serious misconduct.
The project engineer was therefore not unfairly dismissed and his application was dismissed.
Source:
Masters v Wilmar Sugar Pty Ltd [2021] FWC 6230 (28 October 2021) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC//2021/6230.html
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