Drug Dismissal Deficiencies Mitigated by Safety Obligations

drug testing imageThe summary dismissal of a worker who returned a positive drug result lacked procedural fairness but this was mitigated by the employer’s need to ensure a safe workplace, the FWC has ruled.

Ensign Australia had employed the derrickhand at the Santos Moomba gasfields for almost four years at the time he was given two random drug tests and dismissed two days later when it was confirmed he had failed one of them and that the other might have been diluted.

The derrickhand, who was assigned to work on a drilling rig at the gasfields, tested positive to methamphetamine, THC and amphetamine in a Santos urine test but an Ensign test used later the same day returned a negative result.

Ensign’s oil and gas manager deemed the in-house sample unreliable and told his HR team leader to summarily dismiss him, a task she passed onto another member of the HR team, who informed him by phone.

The oil and gas manager conceded in court that there was no formal meeting where the allegations and proposed disciplinary outcome were put to the derrickhand for comment.

However, the company argued that any procedural deficiencies were overcome by the “very serious nature of the conduct” and the lack of prejudice that arose, and it said the derrickhand had an opportunity “after the screening test to explain his position”.

The derrickhand sought compensation for his dismissal, alleging that there was no valid reason for it as he did not use drugs, the testing was unreliable and he was denied procedural fairness.

He argued the dismissal was harsh, unjust or unreasonable because he was not asked to explain the results, the Santos test was not conducted in accordance with the fitness for work policy, he was not provided with a sample and his employer had not investigated the validity of the results.

Derrickhand gambled and lost, says commissioner.

Commissioner Chris Platt said the derrickhand was overstating “the onus on the employer” by contending there was “insufficient evidence” to support his summary dismissal and that “intent” had not been established.

“The test in s387(a) of the FW Act does not require that the employee’s conduct justified summary dismissal, or was ‘serious misconduct’, or whether the employer had a right to dismiss at law,” the commissioner said.

Rather, to establish a valid reason, “Ensign must demonstrate that [the derrickhand] breached the Fitness for Work Policy, not that any breach was wilful or constituted serious misconduct”, he said.

Finding the derrickhand “was aware that there was a risk that if tested before the commencement of his shift, he would have returned a positive result”, the commissioner said “it appears that [the derrickhand] gambled that he would not be tested and in this case lost”.

Employer should have followed due process.

In dismissing the case, Commissioner Platt said it would have been “preferable” for Ensign to have put the allegations and proposed result to the derrickhand for comment.

However, he said he believed the result would be the same.

“The evidence before me is that risks to safety in the drilling industry are high, a lapse in judgement can result in serious injury or death,” he said.

“The zero tolerance drug and alcohol policy and the likely consequences of a breach was well known to [the derrickhand].

“In my view, the prejudice resulting from of the procedural deficiencies is outweighed by the need to ensure a safe workplace.”

Nicholas Hafer v Ensign Australia Pty Ltd T/A Ensign International Energy Services [2016] FWC 990 (22 February 2016)

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