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Drugs and alcohol dismissals: different FWC outcomes

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Drugs and alcohol dismissals is increasingly become common in today’s workplaces. This is as it seems drug taking become more normalized in society. Drugs at work is worth reading.

Dismissals for drugs and alcohol continue to be controversial in the workplace

If your employer has a zero-tolerance drug and alcohol policy, dismissal is often justified. If you are found to be under the influence while at work. However, when we look at past Fair Work Commission decisions, breaching such a policy doesn’t always mean termination was a proportionate response.

The FWC considers a range of factors when deciding if such a dismissal was harsh or unreasonable. Often, it may find that contextual factors – like the employee’s record at the company, their length of service and prospect of finding a new job – outweigh their misconduct.

It will also consider other factors, like whether their drug or alcohol use contributed to an unsafe work environment, and how likely they are to be under the influence in the future. In this article, we look at two unfair dismissal cases involving workers who were fired for testing positive for drugs and alcohol. These two cases ended in very different results for the two workers, for reasons that you will learn below.

Rail worker dismissed for testing positive for cocaine

Let’s first look at the recent Fair Work Commission case Kieran Woodgate v Queensland Rail Transit Authority T/A Queensland Rail [2024]. Kieran Woodgate began working for Queensland Rail – the state’s railway operator – in 2008 as a 16-year-old. He started out as a facilities maintainer but after earning qualifications he took up the role of protection officer. This role required Mr Woodgate to oversee Queensland Rail’s Rail Corridor, or ‘Danger Zone.’

He was tasked with managing rail safety on worksites in the zone to help prevent collisions involving workers, rail customers or rolling stock. Mr Woodgate had to make sure no unauthorised persons entered the zone.

Urine-testing
Urine and salvia testing is common in Australian workplaces. It is hard to prove the results are false and you should not be dismissed. Some workplaces develop a toxic workplace culture by testing all the time and threats of being sacked.

Worker gets investigated

In his unfair dismissal claim, Mr Woodgate said that he had been investigated by Queensland Rail after he left the worksite to take part in industrial action. This took place in June 2023.

His employer alleged that he had inappropriately removed “safe working documentation” when leaving the worksite to attend the industrial action. He claimed that he took the documentation with him to “prevent anybody tampering with them.” Queensland Rail alleged that he also refused to return the documents.

Stress of investigation leads to cocaine use

Mr Woodgate was excluded from attending work during the investigation. He told the Fair Work Commission that this caused “high levels of stress, anxiety and depression.” To cope with this, he said that he “experimented with cocaine” in July 2023, receiving it from a friend.

Mr Woodgate said that during the investigation he used cocaine around five times, saying that it “made him feel relaxed and helped him forget about the investigation process.” The investigation ultimately resulted in Mr Woodgate receiving a written warning and he returned to work.

Mr Woodgate told the Fair Work Commission that was able to “cut back” on his cocaine use after he got back to work. However, around Christmas 2023 he decided to use it again. He said he was no longer stressed or anxious, but “wanted that relaxed feeing that cocaine gave him.”

Makes dangerous error at work under influence

The incident that led to Mr Woodgate’s dismissal took place on 15 March 2024. He told the Fair Work Commission that at 5:30am he consumed “a couple of alcoholic beverages and some cocaine.” However, he was due to start work at 8pm that night. Mr Woodgate said that he was not worried about not passing a drug test and did not feel impaired.

That night, he was tasked with securing infield track protection. This required positioning a stop sign. When he proceeded with this task, the superintendent on duty informed Mr Woodgate that he had placed the sign 120 meters beyond where it should have been placed.

As he was so far beyond the desired location for the sign, this meant that Mr Woodgate was walking on ‘live’ track. This part of the track had trains running on it, which meant that he could have been struck and killed.

Employees-discussing-their-issues-with-their-employer.
Employees discussing their issues with their employer. Most employers are understanding. If you have unresolved issues give us a call.

Drug test reveals cocaine use

At 5:43 on 16 March 2024, Mr Woodgate was administered a drug test. He told the tester that he was on medication, but did not tell him about the cocaine use. The test revealed a non-negative result for cocaine.

About half an hour later, Mr Woodgate took another drug test. This one, however, tested negative for cocaine. He was then driven home by his boss and did not hear from his employer until the following Monday. This came in the form of a letter, which invited him to an investigation meeting. He was stood down from his role pending the investigation.

Once his test made its way back to the lab, analysis confirmed the presence of cocaine metabolite, Benzoylecgonine.

Admits to cocaine use

When he returned to work for the investigation meeting, Mr Woodgate was drug tested again and passed. He was, however, required to remain excluded from the workplace. During the meeting, he admitted to using cocaine. Following the meeting and while the investigation proceeded, Mr Woodgate attended drug rehab. In his unfair dismissal claim, he told the Fair Work Commission that he was not a regular, but more an intermittent user.

He said that he used “if he wasn’t feeling 100% or felt like he needed to escape from the stress of life.” Mr Woodgate claimed that he had not used cocaine since entering rehab.

Word-stress-in-a-light-box
Stress can take many forms. How you deal with it is the key. All the medical evidence indicates drugs and alcohol is not the answer.

‘My personal life has not been the easiest’: Worker pleads for job

The investigation concluded that Mr Woodgate had used cocaine and that his actions violated Queensland Rail’s Alcohol and Other Drugs Standard and Code of Conduct. In April 2024, he was issued a show cause letter asking him why he should not be dismissed.

In his response to the letter, Mr Woodgate said that “I made this mistake and deeply regret this decision” and that he was “sorry for it all.” Mr Woodgate said that “My personal life has not been the easiest one lately, for the past 12 months I have been struggling with my mental health and finances.”

He said that during the investigation about the safety documents, he “thought I would lose my career” and was “hemorrhaging money” due to being stood down. He said that he was “a good worker” and “did not believe I may have been impaired.” Mr Woodgate pointed to the fact that he had “taken steps to enroll in a rehabilitation program” and “would also be willing to attend any program required by Queensland Rail.”

Worker’s words used against him

However, these pleas landed on deaf ears. Queensland Rail’s general manager of network maintenance said he had “no confidence that Mr Woodgate would not simply succumb to his urges to use cocaine again before a work shift”. He considered Mr Woodgate’s 15 years of service. But he stated that with this length of service “Mr Woodgate would know that safety is the number one priority.”

The general manager acknowledged Mr Woodgate’s contrition and personal struggles but felt that they “did not outweigh the seriousness of his conduct.” He said that his financial struggles caused by being stood down “would likely be mitigated by the total amount of back pay [he] received.”

The general manager also took issue with the fact that he felt he did not “feel impaired.’’ To Queensland Rail, this indicated “a concerning risk appetite for attending work after consuming cocaine.” Another Queensland Rail manager said Mr Woodgate’s statements “cause[d] him great concern.” In particular that “he chose to use cocaine because he wanted the feeling.”

On 10 May 2024, Mr Woodgate was fired by Queensland Rail. He subsequently lodged an unfair dismissal claim with the Fair Work Commission.

Person-addicted-to-prescription-drugs-taking-some.
Person addicted to prescription drugs taking some. Some employees take medications before going to work to get them through the day. OH&S issues around the issue of drug taking is a very serious matter for workplaces.

Parties make arguments to Fair Work

In his unfair dismissal claim, Mr Woodgate argued that the “mere presence of cocaine in his body” was not a fair reason to sack him. He also claimed that “the alleged misconduct of obtaining a positive test” did not justify his termination.

Queensland Rail, on the other hand, contended that the sacking was justified as Mr Woodgate had violated its drug and alcohol policy. The authority also questioned his desire to get off drugs, saying there was “no persuasive evidence of rehabilitation or an ability to control [his] urges.”

Fair Work Commission decides

At Mr Woodgate’s unfair dismissal hearing, the FWC did not share his belief that he was rehabilitated from drug use. It took particular note of his statement that he had used cocaine when he “wasn’t feeling 100% or felt like he needed to escape from the stress of life.”

Such a statement, the commission said, would make it reasonable for Queensland Rail to “have no confidence” that he would not use cocaine again “if he confronted similar life obstacles.” The commission accepted that under the influence of the drug, Mr Woodgate had stepped onto a “live rail track” – an incident that had to be reported to an independent rail regulator. It highlighted that this was a “very serious” safety breach.”

Given these observations, the Fair Work Commission found that there was a valid reason for Mr Woodgate’s sacking. It considered the dangers of his workplace and the safety obligations of Queensland Rail. Also, the fact that he had been trained on the authority’s drug and alcohol policy.

The commission also viewed that his long service for Queensland Rail meant that he owed a “high level of compliance” to the policy. Mr Woodgate’s unfair dismissal claim was therefore rejected.

Employee-holding-a-marijuana-joint-sitting-at-a-table-with-a-laptop-and-cannabis-buds.
Employee holding a marijuana joint sitting at a table with a laptop and cannabis buds. WFH has created a whole new level of workplace behaviour. Most employers do not drug test you at home. Employees know this.

Rail worker of 39 years dismissed for positive alcohol test

A similar unfair dismissal case involving a worker who violated a drug and alcohol policy is Trevor Purves v Queensland Rail Transit Authority T/A Queensland Rail [2022]. While this one also involved Queensland Rail, it ended with a very different outcome. Trevor Purves began working for the authority in the late 1980 when he was 20 years old. At the time of his sacking, he was employed as a track worker at a train depot in the regional town of Roma, Queensland. 

On 23 March 2022, Mr Purves walked home from the depot and went about his usual routine. He told the Fair Work Commission that “he is known to follow this routine of ending his drinking and being in bed by 8:30pm.”

On this particular night, he started drinking at 3.30pm. He said that he had about 325 milliliters of Johnny Walker Scotch mixed with cola. This drinking session ended at about 7:45 and also involved him having a light microwave dinner. True to his usual routine, he went to bed at 8:30pm.

Test gives varied results

The next day, Mr Purves woke up at 5:30am and headed to work, where he was met by a drug and alcohol tester. He knew he would be there, however, and told the FWC that he had “no concerns about this test.” He said that he had had numerous tests in the past, and his nightly dinking behaviour then was the same as the previous night.

Mr Purves claimed that he went on to be tested four times that morning. Each test had showed a different blood alcohol level, and he claimed that the tests were possibly faulty or the apparatus wasn’t functioning properly. His final test gave a blood alcohol level of 0.025. Queensland Rail had a zero-tolerance drug and alcohol policy, which meant any positive reading was considered a breach.

Young-male-employee-sitting-at-his-studio-and-smoking-a-marijuana-joint.
Young male employee sitting at his studio and smoking a marijuana joint. Not working is he? Some employers don’t care as long as you produce results. Be aware it can spiral out of control.

Investigation leads to dismissal

Mr Purves was then subject to an investigation, during which he was “honest and deeply apologetic,” he told the Fair Work Commission. Queensland Rail said that Mr Purves agreed that he had tested positive for alcohol. It deemed that he had therefore breached its policy.

A show cause letter was subsequently issued to Mr Purves, in response to which he had to plead the case for why he shouldn’t be dismissed. He noted his 39 years of service to Queensland Rail, his family commitments and unblemished record. He also highlighted that he thought his age and weight loss may have led to the positive result.

These, however, did not convince Queensland Rail. On 24 June 2022, Mr Purves was dismissed.

Worker pleads case to Fair Work

Mr Purves argued a similar case to the Fair Work Commission, highlighting his long, unblemished record. He also noted that he was 63 years old with limited literacy and technology skills. This, he felt, would make it very hard to get a new job. Mr Purves also pointed out that being sacked by Queensland Rail – the state’s rail provider – would mean he couldn’t work in the rail sector.

He also outlined the difficulties in his personal life, including his wife’s cancer diagnosis and the fact that his family relied on his wage. Mr Purves said that the loss of his job meant they would need to sell their house and rent instead. He also claimed that the test administered by Queensland Rail was faulty. He noted that he was not the only employee to get a faulty reading.

Close-up-of-a-young-employee-making-a-stop-gesture.
Close-up of a young employee making a stop gesture. Learn to say no. We are not the moral police at AWNA. However we see jobs and careers ended daily over behaviour that could have been avoided.

Fair Work Commission decides

At Mr Purves’ unfair dismissal hearing, the Fair Work Commission considered if his sacking was a proportionate response by Queensland Rail. The Fair Work Act 2009 states that “factors subjective to the particular employee,” like age, length of service, service record, must be weighed against the misconduct.

The Fair Work Commission took note of Mr Purves’ genuine remorse. They had confidence in him continuing his employment without any future misconduct. It also took into account his personal situation and his genuine belief that drinking the scotch would not have led to a positive test.

It therefore ruled that his sacking had been harsh and unfair. Queensland Rail was ordered to reinstate Mr Purves and pay him lost pay. The amount of compensation, however, was reduced by 50 per cent due to Mr Purves engaging in misconduct. Queensland Rail “should have concluded that termination of [Mr Purves’] employment, in all of the circumstances was too harsh,” the Fair Work Commission said.

Have you been dismissed for a positive drug test?

We can help you make a claim with the Fair Work Commission. Our team has helped over 16,000 Australian workers take action over the last 30 years. We’re Australia’s leading workplace advisors for employees. We offer a no-win, no fee and pay as you go service. Subjected to a workplace investigation or workplace harassment call us today.

Call us today on 1800 333 666 for a free and confidential conversation.

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