That Wacky Tabacky could get you the sack-y!

A warehouse worker who admitted to smoking cannabis the evening before attending work has failed to get his job back in a high risk environment.  The worker claimed his dismissal was harsh, unjust or unreasonable before the Fair Work Commission but his claim has been dismissed.

The FWC found that Coles Supply Chain did not unfairly sack the warehouse worker for a positive drug test.

The employee of Coles Edinburgh Parks Distribution Centre tested positive for cannabis during a test during his shift in January 2016. His employer had a zero tolerance Drug and Alcohol Policy.

The employee was subject to a drug test following a forklift incident for which the employee was not at fault. Following the incident the employer elected to conduct a drug test to which the employee agreed. The test returned a positive result and later tests found the result to be a “relatively high level” of THC.

The employee originally told Coles he had taken the drug more than 24 hours before the test was conducted, but later admitted that he had taken the drug at a later time. Both times were outside what the employee contended was the “window of detection”.  However, an expert found the level of THC in the employee’s system to be consistent with smoking the substance ‘most likely’ 1 to 3 hours before, but within 8 hours of the start of his shift.

The employee further claimed mitigating factors such as his use of cannabis to help him deal with work-related stress and assist him to sleep, as well as an allegation that he had been told during his employment induction that consumption at least 3 to 6 hours before a shift was outside the “window of detection” and would not generate a positive result.

Commissioner Hampton found based on the evidence, including expert evidence of the test results from a doctor who specialises in workplace drug and alcohol policy, that the employee was “recklessly indifferent” to the breach of the policy by consuming the drug on the morning of his shift and had done so “within, or at very best, close to” what he understood to be the “window of detection period”.

The Commissioner went further to say that had the employee not misled Coles about when he smoked the marijuana he would have been able to more legitimately rely on the “detection window” as a mitigating circumstance. Therefore credibility was an issue in reaching the decision in this matter.

This decision is a timely reminder for all workers to weigh the risks of your alcohol and/or drug consumption. Many employers, especially in high risk environments, have policies which are based on “presence” rather than “impairment”.  This means that the employer doesn’t necessarily have to prove that your work or performance has been adversely affected, they only need to demonstrate that the substance was present.  If these substances are detected as part of a comprehensive and rigorous drug testing regime you are potentially risking your job.

If your employer intends to rely on a Drug and Alcohol policy from a disciplinary perspective it has an obligation to ensure you have been consulted under WHS laws, trained and fully understand the policy, your obligations and implications.

Should you have any questions about Drug and Alcohol policies and testing or any other employment related matter, don’t hesitate to give us a call on 02 49614694 or by email secretary@sdan.org.au.

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