INSIGHT

Employee reinstated despite breaching 'zero tolerance' drug policy

By Tarsha Gavin
Employment & Safety

In brief 3 min read

The Fair Work Commission (the FWC) has ordered the reinstatement of an employee following inconsistencies in an employer's 'zero-tolerance' policy regarding drug and alcohol use.

How does it affect you

  • This decision serves as a useful reminder that employers should be cautious when relying on 'zero-tolerance' disciplinary policies to dismiss an employee.
  • Employers need to ensure there is consistency in the application of such policies to employees, and in the operation of such approaches with other policies.

Background

Mr Hilder worked as a customer service attendant for Sydney Trains for six years. He was dismissed from his employment after returning a positive result for cannabis during a random drug test. Mr Hilder admitted to having smoked cannabis for the first time in 30 years the night before returning the positive result. The positive result breached the Sydney Trains Drugs and Alcohol Policy, Code of Conduct and its 'zero tolerance' approach to drugs and alcohol. 

The decision - an unfair dismissal

Mr Hilder brought an unfair dismissal application. In defending the claim, Sydney Trains said that while Mr Hilder's personal and mitigating circumstances had been considered in line with Sydney Trains' disciplinary policy, the seriousness of his misconduct and their 'zero tolerance' policy for drugs and alcohol justified the dismissal.

However, the FWC held that Mr Hilder's dismissal was unfair, stating:

Mr Hilder's conduct was not serious misconduct. At worst, it was a serious error of judgment.

  • Mr Hilder's conduct was not serious misconduct. At worst, it was a serious error of judgment.
  • Sydney Trains' 'zero tolerance' approach was 'logically inconsistent' with its disciplinary policies, which required mitigating circumstances to be considered. This created confusion among employees regarding the application of Sydney Trains' policies.
  • In reality, there was no such thing as a 'zero tolerance' approach at Sydney Trains. This is because, while employees were in breach of the policy if they returned a positive THC level of 15ug/Ls in a confirmatory drug test, the initial screening test could only identify a result over 50ug/Ls. This meant an employee could be at work with a non-detected THC level of up to 49ug/Ls, which was inconsistent with a 'zero tolerance' approach to drugs.
  • The 'true effect' of the 'zero tolerance' policy had not been effectively communicated to Sydney Trains employees. Not only were employees unaware that a positive drug test would automatically result in dismissal, there were some who had tested positive to drugs but had not been dismissed.

In finding the dismissal harsh, Deputy President Sams also considered Mr Hilder's honesty and remorse, his six years of exemplary service, his age, difficulty in finding alternative employment, and family and financial circumstances. Reinstatement was deemed the appropriate remedy in the circumstances.