Unclear work policy causes drug confusion

A Sydney stevedore dismissed for testing positive for cocaine has been reinstated to his job by the Fair Work Commission. The stevedore had been sacked for violating his employer’s drug and alcohol policy. However, he claimed the unclear work policy was never explained to him.

The Commission found several flaws with the employer’s policy. Labelling it as “inadequate” and finding that it was rife with inconsistencies. This unfair dismissal case –  Lee Witherden v DP World Sydney Limited [2025] – goes to show that employer’s must explain their policies to staff and ensure they are understandable. They must also ensure they follow their own policies when deciding to sack an employee.

In this article, we look at the events of this case and explain the reasons why the Fair Work Commission decided to reinstate the employee. We also look at another case of a UK Apple worker who was sacked for breaching a policy that did not even exist.

Wharfie wins reinstatement following positive Cocaine result

Forty-nine-year-old Lee Witherden began working for multinational logistics company DP World in 1999 as a stevedore. He worked primarily as a forklift driver, ITV driver and RTG driver.

In April 2022, Mr Witherden had an accident at work that resulted in tears to both his shoulders. In June 2023, he underwent an operation to fix the injury. For months thereafter he was required to have multiple cortisone injections and platelet rich plasma injections. After taking seven weeks of work, he returned to light duties at the end of July 2023.

Took cocaine to cope with ‘painful’ injury

Mr Witherden told the Fair Work Commission that his recovery from the injury was “slow” and “often painful.” He said that it left him with anxiety, stressed and often lashing out at loved ones. Mr Witherden said that he started “self-medicating” with illegal drugs, mostly cocaine. He said that he became addicted to cocaine and that it made him feel “euphoric” and “excited.”

At 6am on 27 May 2024, Mr Witherden was required to take a random drug test. He tested positive for cocaine and was subsequently placed on suspension. Mr Witherden told the Commission that he had been on leave the previous five days, during which time he used cocaine “heavily.” He said that on the morning of 27 May 2024 he felt “good and alert” and did not feel that he was impaired in any way.

Dismissed after testing positive

In June 2024, DP World sent Mr Witherden a letter inviting him to show cause why he should not be dismissed. It cited his breach of the company’s Alcohol and Other Drugs policies. Mr Witherden replied saying that he was “deeply sorry” and accepted responsibility for testing positive.

He said that his decision to take cocaine 24 hours prior to his shift was “stupid and irresponsible.” Mr Witherden pointed to his 25 years of service to DP World. He said the positive test was a “turning point” in his life and claimed that he would never use drugs again. He also said that he was “willing to do anything” to prove that he would not use drugs again.

Despite these pleas, on 7 June 2024 Mr Witherden was dismissed by DP World. It cited the fact that he had breached its Alcohol and Other Drugs policy as well as its code of conduct. Feeling he had been unjustly fired, Mr Witherden subsequently filed an unfair dismissal claim with the Fair Work Commission.

Worker said dismissal had ‘devastating effect’

In his unfair dismissal claim, Mr Witherden said that following his sacking he had stayed true to his promise to remain drug free. He said that he attended counselling and psychiatric sessions.

Mr Witherden said that the loss of his job had a “devastating effect” on him and his family. He said he lost his identity as a “wharfie,” as he had done the job for over 25 years. He had been unsuccessful in finding a new job. Mr Witherden said he pursued an unfair dismissal claim to get reinstatement to his position at DP World.

Worker argued unclear work policy wasn’t explained to him

Mr Witherden argued to the Fair Work Commission his sacking was harsh because due to several factors. This included his age and unblemished 25 years of service to DP World did. He also argued that he was not impaired by cocaine when he tested positive and that DP World did not consider any other options other than to sack him.

Mr Witherden took particular issue with the application of DP World’s Alcohol and Other Drugs policy. He said that he was “generally aware” of the policy. However, he claimed the company never explained what it meant to be “fit for work,” which was a condition outlined in the policy. The unclear work policy around drugs had resulted in his termination.

He said that DP World did not explain the significance of cut-off levels and how the Australian Standards apply. When he turned up to work on 27 May 2024, he said he believed he was fit for work. He came to this conclusion as he did not feel that he was impaired. He said that he would never want to place his coworkers in danger by coming in impaired by drugs.

Unclear work policies found to be contradictory

At Mr Witherden’s unfair dismissal hearing in February 2025, the Fair Work Commission took a close look at DP World’s code of conduct. In particular, it examined the “fit for work” clause. The Commission observed that it stated that employees needed to be free of drugs and alcohol. This, in addition to other issues that could impair ability at work, like medication or medical conditions.

The Fair Work Commission also took a close look at DP World’s Alcohol and Other Drugs policy. It was here that ambiguity in the company’s expectations of employees was found. The Commission noted that DP World had a “zero-tolerance” drug and alcohol stance. However, violated the Alcohol and Other Drugs policy “does not automatically result in dismissal,” the Commission said.

How DP World would deal with a positive drug result, according to its own policy, depended on the circumstances. The Commission noted that particular incidents, like a worker having their drink spiked, may be treated differently by DP World.

Fair Work highlights ‘inadequate’ work policy

The Fair Work Commission next turned to the issue of whether Mr Witherden was in fact impaired on the morning he tested positive for cocaine. It acknowledged evidence that cocaine “disappears” from the body after a few hours, but the metabolites linger in the system.

The Commission noted that DP World had accepted that Mr Witherden had not been acutely impaired. However, the company said that he still would have been impaired due to withdrawals. The Commission said that Mr Witherden had not violated DP World’s unclear work policy due to being impaired. Rather, because he tested positive for cocaine metabolites.

It said that compliance with the policy was made “difficult” because it did not outline that a drug test would render a positive result for metabolites, even when the worker was not intoxicated. The Commission therefore ruled that as the policy did not explain this, Mr Witherden was provided with “inadequate” information by DP World.

It said that the company should have “explicitly advised” that its Alcohol and Other Drugs policy also applied to the hangover effects of drugs and not just intoxication.

Company had discretion to pursue dismissal or not

The Fair Work Commission had further issues with DP World’s Alcohol and Other Drugs policy. It said that it gave the company the choice of not pursuing disciplinary measures if a worker tested positive for drugs. It noted that after testing positive, Mr Witherden had revealed to the company that he had been experiencing mental health issues.

The Commission said that this revelation should have caused DP World to consider offering him support to rehabilitate from drug use. It factored in Mr Witherden’s personal circumstances. This included his unblemished 25 years of service to the company, his contrition and the fact he had complied with the disciplinary process.

Worker won reinstatement

The Fair Work Commission said that these personal circumstances “weigh[ed] in favour” of finding that Mr Witherden’s dismissal had been unfair. It noted that he had not taken cocaine on the day that he turned up to work and that he had not caused any safety incidents.

DP World had argued to the Commission that it had lost trust and confidence in Mr Witherden and therefore he should not be reinstated. However, the Commission said it had “difficulty” believing this as Mr Witherden had only breached its policy once.

The Fair Work Commission ultimately ruled that DP World had unfairly dismissed Mr Witherden. He was, however, not awarded any backpay for the nine months that he was out of work. The Commission said that this was an “appropriate” penalty given the circumstances of his case.

Apple Store employee dismissed for breaching non-existent policy

Another case that involved an employer relying on an unclear work policy to dismiss an employee made headlines in June 2024. In this case, however, the employer did not have a policy at all. Timothy Jeffries worked as an “Apple genius” at an Apple Store in London since 2010. He was dismissed in February 2023 over two alleged breaches of company policy.

The first incident occurred on 13 December 2022 when Mr Jeffries made a joke about Covid-19 to a colleague of Chinese heritage, Ms Liu. Another colleague, Mr Webster, was also present. Mr Webster was about to leave on secondment for nine months. Mr Jeffries said to him “See you in nine months.” He then turned to Ms Liu and said “as long as you lot don’t release another deadly disease on the world.”

A second incident took place just three days later. Mr Jeffries allegedly told a colleague that he might have been more successful in a promotion application if he had stated that he was of “Jamaican heritage” or “Asian.”

Worker said racial banter was common at store

These two incidents were subsequently investigated by the manager of the Apple Store. Mr Jeffries was subsequently dismissed for breaching Apple’s “zero tolerance” policy on racial discrimination. He challenged his sacking with the Central London Employment Tribunal.

Mr Jeffries argued to the Tribunal that he intended the comment about Covid as a joke. He said that the Genius team at the store often joked about racial stereotypes. He claimed that Ms Liu would have understood that the Covid remark was made in jest.

Mr Jeffries said that she had laughed at the joke. However, he did admit to the tribunal that it could have been interpreted as offensive if taken out of context. Ms Liu did not complain about the joke to Apple. However, Mr Webster, who reported feeling that Ms Liu looked shocked, raised the matter.

Tribunal found zero-tolerance policy ‘does not exist’

At his unfair dismissal hearing, Mr Jeffries denied using discriminatory language in the second alleged incident. He also contended that Apple had not followed proper disciplinary procedures and identified several breaches in the process.

The Tribunal found that Apple’s investigation into the incidents were “superficial.” It said that the Apple Store manager who led the investigation appeared to operate under the belief that Apple had a zero-tolerance policy to racial discrimination.

However, the Tribunal observed that no such policy existed in Apple’s written procedures. It said that “no reasonable employer” would dismiss a worker based on a zero-tolerance policy that “does not exist.” The Tribunal said that the investigation and disciplinary process relied on the policy which was not set out in writing and was subject to “personal interpretation.”

Worker found to be unfairly dismissed

The Central London Employment Tribunal also found that there was “ample evidence” that the culture at the Apple Store involved foul language and jokes that some might consider inappropriate. Given this context and the non-existent zero-tolerance policy, it ruled that Mr Jeffries’s sacking was “outside the band of reasonable responses.” The Tribunal set a subsequent hearing to determine the compensation he would receive for his unjust sacking.

Have you been dismissed for breaching a policy?

As you have read in this article, employers must be very careful to stick to their own procedures and policies when sacking a worker. Employers must also ensure their policies are clear and that their staff understand them.

If you believe your employer did not follow their own policies and procedures when dismissing you, give us a call. We help Australian workers in every state and territory to take action through the Fair Work Commission.

Make sure you contact us today, because you only have 21 days from the date of your termination to make an unfair dismissal claim. Call us now on 1800 333 666 for a free and private conversation.

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