Dismissal of an employee who tests positive for drugs
may, at least in the context of safety-critical work, be lawful and
The Fair Work Commission has made clear that immediate dismissal
for drug use at work can be justified in a high-risk work
environment with a zero tolerance drug policy in place.
Ensign Australia Pty Ltd, the operator of Santos Moomba Gas
Fields, summarily terminated an employee after he returned a
positive test result for drugs upon presenting for work on 30
August 2015. The employee, Mr Hafer, had been employed by Ensign
for three years as a Derrickhand, performing drilling services at
the gas fields. He contested his dismissal on the basis that it was
harsh, unjust and unreasonable (Hafer v Ensign Australia Pty Ltd
 FWC 990).
The dismissal – not harsh, unjust or unreasonable
Ensign's "Fitness for Work – Drug and Alcohol
Policy" adopted a zero tolerance approach to drugs and alcohol
in the workplace and made clear in no uncertain terms that a
contravention of the policy could result in termination of
employment. Additionally, workers had to submit to random and
"for cause" drug and alcohol testing due to the high risk
nature of the workplace.
Safety considerations paramount
The Commission determined that Ensign was within its rights to
terminate Mr Hafer's employment on the basis of the positive
drug test, particularly because Mr Hafer was required to perform
work in a high-risk environment (a drilling rig), which, if
uncontrolled, potentially exposed him to serious injury or death. A
key consideration of the Commission was that the conduct also posed
risks to other workers – as their safety on site was
dependent upon all crew members following policies and procedures,
remaining vigilant and focused on their duties, and being fit for
Procedural deficiencies outweighed
Ensign admitted that it had failed to properly notify Mr Hafer
of the reason for the termination of his employment, and should
have met with him to provide him with an opportunity to respond to
the proposal to terminate his employment, prior to making a final
determination. However, despite this failure to provide procedural
fairness as required by the Fair Work Act 2009 (Cth), the
Commission found that had Mr Hafer been provided with an
opportunity to respond, the outcome would not have changed.
Given that the determination of an unfair dismissal claim
requires the Commission to consider a number of factors in
totality, the Commission concluded that due to the serious nature
of the safety considerations set out above, the lack of procedural
fairness did not render Mr Hafer's dismissal unfair.
Does your policy allow appropriate disciplinary responses?
This case demonstrates the Commission's willingness to find
that employer policies which provide for disciplinary action
including dismissal where an employee tests positive for drugs may,
at least in the context of safety-critical work, be lawful and
reasonable. Employers should ensure that:
policies provide a clear, zero tolerance approach to drugs and
alcohol in the workplace, and specify the consequences of a
regular training is provided to employees on their obligations
(and consequences of breach) under the policy; and
if seeking to terminate an employee's employment for breach
of the policy upon return of a positive drug test, ensure that
procedural fairness is considered in any termination process.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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When employees engage in out-of-hours misconduct, it can negatively affect the reputation of the employer.
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