Fair Work Australia (FWA) has held that an
employee was unfairly dismissed despite finding that the employer
had a valid reason for terminating the employee and the employer
providing the employee with an adequate opportunity to respond to
allegations that he had breached the employer's drug and alcohol
policy.
The employee had been employed as a truck driver and farm worker
with the employer since June 2008. In around July 2009, as part of
the employer's cartage contract with Tritton Mines
(Tritton), the employee was to exclusively perform
driving duties for the employer, carting materials from the mining
site.
Both the employer and Tritton had drug and alcohol workplace
policies and the employee acknowledged his awareness of such
policies. On around 8 July 2009, the employee failed a drug test
administered by Tritton and was, therefore, unable to enter the
mine facility until he could be cleared as drug free.
After discussions between the employee and employer about the
policy breach, the employer decided to terminate his employment on
the basis of his failure to pass the drug test and resultant
inability to perform the driving work that had been allocated to
him.
The employee applied to FWA for a remedy alleging that his
termination was unfair. FWA held that the employee, in failing the
drug test, in breach of the employer and Tritton's policies,
policies of which he was aware, provided the employer with a valid
reason to terminate his employment. FWA further determined that the
employee had been notified of the reason for his dismissal, and had
been provided with an adequate opportunity to respond. However, FWA
considered that the termination of the employee was premature and
that the employer could have utilised the employee on other duties
or stood him down without pay.
FWA held that a two-week period would have been reasonable to
allow the employee to provide clear drug test results and
accordingly awarded the employee two weeks' compensation. FWA
declined to reinstate the employee due to a lack of available work
with the employer caused by the economic downturn.
This decision highlights the importance of seeking advice prior
to terminating any employees as a valid reason will not always be
sufficient to justify an employee's dismissal.
For more information, please contact:
Louise Houlihan, Partner
Phone (direct): +61 3 9608 2273
Email:
l.houlihan@cornwalls.com.au