Unfair dismissal claim fails for worker given second chance after drugs test

A worker who tested positive for drugs and was then given a second chance to provide a clear test, has failed in his claim of unfair dismissal after failing to turn up for the further test.

Lewis Pitts was employed as a scaffolder by AGC Industries, which conducted a random site-wide drug and alcohol test on employees at the Alcoa Wagerup Alumina Refinery in Western Australia on  January 29, 2013.

Pitts provided a urine sample which indicated the presence of methamphetamines and cannabis. He was then given until February 8 last year to provide AGC with a clear drug result and advised that a failure to do so may result in further consequences, including dismissal.

The next test Pitts provided was inconclusive because his urine sample was too diluted and, therefore, unsuitable for analysis.

Pitts was asked to provide a clear test by the end of the day and failed to do this so on February 11. AGC advised Pitts his employment had been terminated because he had failed to provide a clear drug test by the deadline.

Pitts then applied to the Fair Work Commission on the basis of unfair dismissal but Commissioner Danny Cloghan found there was valid reason for dismissing Pitts given the results of the initial drug test as well as the failure to provide a clear test result and all the surrounding circumstances.

The Commissioner found Pitts had understood dismissal was a possible consequence of failing to satisfy AGC of his fitness for duty by providing a clear drug test by the deadline and the dismissal was procedurally fair, with all other employees treated in the same manner.

Pitts then appealed to the Full Bench which confirmed it was reasonable for AGC to enforce a requirement for Pitts to prove he was fit for duty within a set time frame.

The Full Bench found it was reasonable to expect that Pitts would take a test at a time that would allow him to take a further test if the initial results were either inconclusive or still indicated the presence of drugs above AGC’s tolerance threshold, but he left insufficient time do so.

“We see nothing unreasonable or that it is plainly unjust in the Commissioner’s decision and therefore reject this ground of appeal,” the full bench said.

Employment lawyer Peter Vitale told SmartCompany it is apparent from the extensive grounds of appeal that the case was very hard fought by the union on behalf of Pitts and you could only speculate as to whether or not there were broader industrial reasons for the union wanting to take a stand like this.

“What it does emphasise is that a properly administered drug and alcohol policy is something that will be supported by the commission and employers shouldn’t be dissuaded from putting a policy of that kind in place where it is important in order for them to meet their health and safety obligations,” he says.

Vitale says AGC gave Pitts what the tribunal obviously considered was a more than reasonable opportunity to comply with the policy. 

M+K Lawyers partner Andrew Douglas agrees with Vitale that the strong drug and alcohol policy created by AGC helped the employer succeed in this case.  

“Where you have a very good drug and alcohol policy and a fitness for work policy and the obligation to comply is contractual in nature a breach can lead to termination,” he says.   

“If you build your drug testing around fitness for work and document it appropriately you will always be in the box seat for people who breach that.”   

SmartCompany contacted AGC for comment but failed to receive a response prior to publication. 

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