The Fair Work Commission (FWC) has upheld the summary dismissal of a worker who was dismissed due to his dishonesty surrounding a positive drug test. The worker, who tested positive for methamphetamines in a random drug and alcohol screening, displayed dishonesty in his responses to queries about what drugs he had consumed. Initially the worker insisted that he had only consumed cold and flu medication prior to taking the test; however, when confronted with the positive test results, he admitted to taking an unknown capsule at a party the previous weekend.

In the worker’s unfair dismissal claim, he argued that he should have received a warning instead of being dismissed because the company’s drug and alcohol policy did not provide for dismissal for a first-time drug test failure.

The FWC found that the employer’s right to summarily dismiss the worker was maintained, despite the fact that the company’s disciplinary policy provided for a warning as a first step. The FWC agreed that the company was entitled to seek an explanation of the positive drug test from the worker and the policy was not found to prevent the company from investigating the incident. The worker’s lack of openness and honesty was held to be a serious breach of the relationship of trust and confidence, which justified summary dismissal and the finding that the dismissal was not harsh, unjust or unreasonable.

Stephen Vaughan v Anglo Coal (Drayton Management) Pty Ltd [2013] FWC 10101

Key lesson for employers. This decision serves as a timely reminder to employers to ensure that they have an up-todate drug and alcohol policy and that this policy is being effectively implemented.

DID YOU KNOW?

The Fair Work Commission (FWC) is required to review all modern awards every four years, which is due to start this year. A draft statement issued by the FWC proposes that the review will consist of an initial stage which considers the legislative framework under which the review will be undertaken, followed by an award stage which reviews the awards in four groups. Watch this space for updates as the review of the current 122 modern awards progresses.