Read: DP World Sydney Limited v Lee Witherden [2025] FWCFB 133 (4 July 2025)
The Fair Work Commission (FWC) Full Bench has upheld a decision to reinstate a worker who was dismissed following a positive drug test result, confirming that a breach of a workplace drug and alcohol policy does not automatically render a dismissal fair under the Fair Work Act 2009 (Cth).
The case involved a worker employed in a safety-critical role who underwent a random drug and alcohol test while on shift. An initial saliva and subsequently a urine test was conducted by an external provider and both returned a positive result for an illegal substance. The employee admitted to taking a drug outside of working hours, before the start of his shift. Medical evidence supported the claim and found that the test had detected only inactive metabolites, meaning there was no evidence the worker was under the influence or impaired at the time of testing.
Despite the employer’s zero-tolerance policy and its argument that the breach constituted serious misconduct, the Commission at first instance found the dismissal to be harsh. The Commission considered the worker’s 25 years of continuous, incident-free service, the fact that he was not impaired or involved in any safety incident, his full cooperation throughout the investigation, and his genuine remorse. It also considered that the employer’s drug and alcohol policy was not clearly drafted in a way that made employees aware that the detection of an inactive metabolite, rather than current intoxication, would be treated as a dismissible offence. The policy failed to explain the scientific basis of testing or the implications of different types of results, such as the distinction between active and inactive substances. There was also no evidence the employee had been trained on how long substances could be detected and that a positive result, even without impairment, could still lead to termination.
The Commission concluded that while a valid reason for dismissal existed, the dismissal was harsh in the circumstances. It found that the employer had not properly considered alternatives to dismissal or taken into account the mitigating factors. The employee was reinstated without continuity of income but with continuity of service, recognising that while the worker had breached policy, the employer’s response was disproportionate and procedurally flawed.
The employer appealed, arguing that the Commission had failed to give proper weight to workplace safety and the need to enforce its zero-tolerance policy. It also sought to reargue the factual findings. However, the Full Bench dismissed the appeal, finding that the original decision was open on the evidence and did not involve any legal error. It reaffirmed that a breach of policy does not automatically justify dismissal and that the Commission is required to assess whether a dismissal is harsh, unjust or unreasonable having regard to all the circumstances listed under section 387 of the Fair Work Act. The Full Bench found no fault in the Deputy President’s assessment that the dismissal was harsh in the context of the worker’s service history, lack of impairment, and the policy’s lack of clarity.
The Full Bench also confirmed that appeals are limited to situations involving legal or factual error and are not an opportunity to simply revisit a decision that an employer disagrees with. The decision confirms that the presence of a valid reason does not override the requirement for a dismissal to also be fair in all the circumstances, particularly where policy enforcement is not supported by clear communication, training, and proportionality in disciplinary response.
This case sends a clear message to employers that the enforceability of drug and alcohol policies depends on how clearly those policies are drafted, how they are explained to employees, and how fairly they are applied in practice. It is not enough to have a zero-tolerance approach on paper. Workers must understand what that means in practice, especially in cases involving substances that can be detected long after use without causing impairment. Employers should also ensure that they give workers a proper opportunity to respond to test results and consider the full context, including length of service, prior conduct, and rehabilitation efforts, before making a termination decision.
For advice on managing drug and alcohol issues in the workplace, reviewing your current policy for clarity and enforceability, or support in disciplinary procedures, contact the Workplace Relations team on (02) 6175 5900 or workplace@mba.org.au.
