Many employers implement drugs and alcohol policies to mitigate workplace risks and uphold health and safety standards. When faced with such breaches, many employers are keen to dismiss their staff, however, a recent Fair Work Commission (‘FWC’) ruling underscores the importance of considering individual circumstances before terminating employment.
Case Overview
In Lee Witherden v DP World Sydney Limited[1], an employee returning from leave due to a shoulder injury underwent a routine drug test. Although he tested negative for cocaine, the test detected cocaine metabolites, indicating recent use. The employer’s drugs and alcohol policy stipulated that metabolite levels exceeding Australian standards constituted a breach of the policy.
The employee admitted to using cocaine 24 hours before his shift as a coping mechanism for mental health challenges related to his injury. He acknowledged his mistake, had already sought counselling, and was unaware of how long the substance would remain in his system. Despite this, the employer summarily dismissed him for serious misconduct, citing the inherent safety risks of drug use in the workplace.
Unfair Dismissal Claim and FWC Findings
The employee filed an unfair dismissal claim, arguing that his termination was harsh due to several factors:
- His long tenure of 25 years and previously unblemished record;
- The absence of evidence suggesting he was impaired while at work; and
- The employer’s failure to explore alternatives to dismissal, such as rehabilitation counselling.
The employee’s legal team presented expert evidence demonstrating that cocaine’s effects last only up to 90 minutes, while the employer countered with expert testimony suggesting lingering side effects, such as fatigue and restlessness. The fact that the evidence relied on expert opinion regarding the lingering adverse effects of cocaine use is a major concern.
The FWC ruled that, although the employer had a valid reason for dismissal, the decision was ultimately harsh and unreasonable. The policy did not clearly outline that:
- Drug metabolites may still be detectable even after the drug’s effects have worn off; or that
- Risks associated with impairment can persist beyond intoxication due to residual effects.
Key Takeaways for Employers
This case highlights the importance of ensuring workplace policies are comprehensive and clearly communicated. The FWC noted that while the employer’s policy allowed for dismissal in cases of drug use, it also permitted discretion in responding to breaches, including rehabilitation. Given the employee’s history and proactive steps toward addressing his mental health, the Commission found that alternatives to dismissal should have been considered.
Employers should review their policies to:
- Provide clear guidance on drug metabolite detection and impairment;
- Recognise drug dependency as a treatable condition and outline rehabilitation options; and
- Ensure disciplinary decisions align with the principles of procedural fairness and reasonableness.
In light of this decision, employers should take a measured approach to policy enforcement, considering both safety obligations and the broader context of employee wellbeing.
For tailored advice in reviewing your workplace policies or navigating employment law matters, please contact Daniel (daniel@morganenglish.com.au) and our Workplace + Conduct team at M+E today.
[1] [2025] FWC 294
