The FWC has found an employer’s alcohol and other drugs (AOD) policy to be inadequate and ordered reinstatement and continuity of service for a Port Botany stevedore unfairly dismissed.
DP World Sydney dismissed the stevedore after he tested positive for cocaine metabolites in a random drug test in May 2024. He told the FWC that he started self-medicating with cocaine to deal with the stress and anxiety of a slow and painful recovery from a workplace shoulder injury. He also acknowledged that his breach of the AOD policy was a valid reason for dismissal but believed that his dismissal was harsh and unjust for a number of reasons.
The stevedore stated that he was not impaired in any way when he attended work, having stopped using the drug 24 hours before his rostered shift. He also maintained that his nearly 26-year clear history of employment with DP World where he had passed approximately 40 drug tests in the past, the absence of risk of impairment, and the employer’s failure to consider his mental health and drug issues in looking at other options than dismissal were not properly taken into account. He did not consume the drug on the day of work, nor was he involved in a safety incident.
Expert evidence to the FWC explained that while cocaine “disappears” from the body within three hours, the metabolites that produced the positive test result “stay around a lot longer”. It was also heard that although the worker would not have been experiencing the effects of cocaine when he attended work, he would be experiencing hangover effects.
The FWC considered DP World’s AOD policy, noting that although the workplace had a zero-tolerance approach, a breach of the policy does not automatically result in dismissal and could instead have prompted referral to rehabilitation and support.
It was also found that the AOD policy was not clear in that it tested for inactive metabolites as well as active drugs, nor that DP World regards tiredness and hangover effects as being as serious a safety issue as intoxication in the workplace. Employees should have been provided with more adequate information about the policy.
Read more: "Inadequate" policy leads to cocaine user's reinstatement