Drugs and Alcohol in the Workplace – is a positive test result enough to terminate?
Several cases have been brought before the Fair Work Commission relating to the testing for drugs and alcohol in the workplace. It is a common misconception that a worker testing positive is sufficient to justify immediate termination for serious misconduct.
These recent cases include DP World Sydney Limited v Lee Witherden [2025] FWCFB 133. In this case, DP World’s appeal was dismissed and the full bench affirmed the decision that the dismissal of an employee who had tested positive for cocaine metabolites was harsh and unreasonable, ordering the employer to reinstate his employment.
The takeaway from this case and those like it is that employers must be careful to adhere strictly to the requirements of their own Drug and Alcohol Policies, and to the Fair Work Act 2009 requirements for fair dismissal.
It may assist employers in similar situations to ensure that their Drug and Alcohol Policy addresses the following:
- Expectations for a negative test (i.e. what constitutes a positive result);
- How a negative test will be defined (eg. Are you testing for the drug itself or metabolites as well);
- What is being tested for;
- Which substances are prohibited and for which types of employees;
- Clarification between prescription medication which is not compatible with safety conscious roles, and illegal drug use;
- Guidelines for employees declaring changes to prescriptions;
- Processes for employees and employers in managing prescriptions which may be legal but not compatible with the requirements of the role;
- Testing procedures; and
- Where certain conduct or test results may be considered serious misconduct.
It appears to be the view in current caselaw that while a positive test for illegal drugs may be serious misconduct, it is essential for the Employer to ensure that the expectations for a negative test result have been communicated to the employee and that any policy is sufficiently detailed regarding what will be considered breach of the policy.
Further, where there is a breach of policy, the requirements regarding thorough investigation and provision of an opportunity for the employee to respond remain critical to ensuring the dismissal process is fair. The Fair Work Commission appears to be taking a complex view of these matters, and is sending the message to employers that a positive test result for drugs or alcohol is not always a safe route to immediate termination.
Other factors may be considered such as:
- Employee record and length of service;
- Whether the result is positive for a drug itself or for metabolites/byproducts;
- The proximity to performing work that the substance was consumed; and
- The impacts on health and safety of the workers conduct.
Each instance of an employee allegedly breaching a Drug and Alcohol Policy should be treated individually, with consideration of the specific circumstances surrounding the events. For further information regarding medicinal cannabis in the workplace, please see our previous article of 8 November 2023.
Disclaimer: This summary is a guide only and is not legal advice. For more information, call ECA Legal on 6241 6129 or email ecalegal@ecawa.org.au
