Did FWC just say “yes” to drugs and alcohol?

Possibly - if any of the FWC’s recent decisions indicate a ‘trend’ to be concerned about.

Prior to the end of 2024, employers were rightly confident that breaches of their Alcohol and Other Drugs (AOD) Policy provided a valid reason for dismissal and, depending on the seriousness, it was not unfair for an employee to have lost their job. However, a raft of recent FWC decisions appear to have adopted a ‘new approach’ whereby this has been significantly called into question.

FWC reasoning as to why an employee found to have breached the AOD Policy should not lose their job seems to have placed a new priority on:

1. extensive consultation, training and instruction regarding the introduction/ amendment of the policy;

2. avoiding any possible confusion regarding the meaning of specific provisions of the policy; and

3. detailed consideration of the personal factors of the employee

Case Analysis

In Sydney Trains v Reece Goodsell [2024] FWCFB 401 (21 October 2024) a FWC Full Bench reinstated an employee found to have traces of cocaine in his system, four days after trying cocaine on a night out with friends while on annual leave, because the termination of the 26 year veteran was otherwise harsh unjust or unreasonable. The full bench found the employee did not understand the implications of consuming cocaine four days before he was due to work because he hadn’t had specific training and because there was "no discussion of the concept of metabolites as opposed to active drugs nor as to how long a metabolite of any prohibited drug may remain in an employee's system".

Whilst the Full Bench stated a breach of an AOD policy without actual impairment may be a valid reason of itself to dismiss, it will be one of the factors taken into account when it considers whether the dismissal was harsh.

In Virgin Airlines Australia Pty Ltd v Macnish [2025] FWCFB 6 (14 January 2025) a FWC Full Bench found the employer unfairly dismissed a worker for breaching its confusing alcohol-related safety policy (spread among multiple policy documents), and based on the employee’s "subjective" understanding of an eight-hour abstinence rule which was confusing and was only a guideline. The Full Bench despite acknowledging that employers could have a valid reason to dismiss employees for safety breaches where they were ignorant of or misunderstood policy requirements, but in this case the employer had failed to clearly articulate what it regarded as a critical safety policy in relation to alcohol consumption. The expectation that the employer would do so was “not an unattainable standard”.

In Adam Mills v Glamorgan Spring Bay Council [2025] FWC 116 (15 January 2024) the FWC found the employer, despite having a valid reason to dismiss an employee for failing to disclose that he had switched from using CBD medicinal cannabis to one containing THC, had unfairly dismissed him because they failed to adequately consider the employee’s personal circumstances (a single father-of-four) and his offer to "push through" the pain while exploring alternative treatments. The employee was reinstated with full backpay.

In Benjamin Unicomb v SESLS Industrial Pty Ltd [2025] FWC 186 (23 January 2025) the FWC awarded $20,000 to an on-hire mineworker sacked following two non-negative tests for benzodiazepines in three days, the second conducted after he briefly covered the in-cabin safety camera of a 300-tonne truck, finding that more consideration should have been given to his "genuine misunderstanding" of the new but “not as clear as [it] could have been" drug policy.

In Lee Witherden v DP World Sydney Limited [2025] FWC 294 (3 February 2025) the FWC found that an employee was unfairly dismissed, despite returning “high readings of cocaine metabolites” from a random drug test and his admission to using cocaine heavily on his days off before the day of the drug test, only stopping using the drug 24 hours before his rostered shift. FWC reasoning was because the policy was vague and ambiguous, the employee had not knowingly breached the Policy, the employer did not adequately train its employees that a positive result could include a positive test for drugs and inactive metabolites, coupled with the employee’s lengthy employment history, cooperation with the disciplinary process and remorse.

In Mr Craig Hancock v Sydney International Container Terminals Pty Limited [2025] FWC 516 (20 February 2025) the FWC reinstated and provided compensation to an employee who breached its newly amended 0.00% BAC requirement. This was despite the employee being already subject to 2 previous warnings for similar breaches and the employer communicating the change via:

1. text message;

2. email (outlining key policy changes);

3. tool box meeting explanation; and

4. copies of the updated policy on notice boards.

These cases have taken a different approach to previous cases such as Harding v MMG Australia Limited (6 February 2018) which we appeared in. In that case, the applicant was dismissed for a non-negative result for cannabinoids. The applicant admitted to smoking marijuana while socialising with friends a week prior to the test but said he had privately undertaken a drug test at home the day before returning to work, which had returned a negative result.

The FWC found there was a valid reason for dismissal and endorsed our client’s zero-tolerance approach where safety critical work is involved. There was no suggestion of impairment or the possibility. The FWC considered the unblemished work history, personal impact, and the employer’s failure to apply the Australian Standard inconsistent with its own AOD policy did not outweigh the seriousness of the breach of the AOD policy.

Our Take

Some of these decisions just don’t pass the “Pub Test’ – pardon the pun. Having said that the reasoning is clear and must be addressed.

We understand that many employers will find it difficult to rationalise the trends in the above cases which indicate a ‘relaxing’ of the consequences for breaching AOD policies especially in comparison to the almost ‘strict liability’ approach to matters like sexual harassment.

We also understand that employers will find it difficult accept that consultation for changes to an enterprise agreement appears to be ‘less burdensome’ than communicating what should be ‘obvious’ outcomes of an amended drug and alcohol policy.

We support a people first approach to assessing outcomes of individual breaches. Trying to achieve ‘identical outcomes’ on the basis of consistency just doesn’t stack up legally or ethically.

Action Items

• Review your current policy - to ensure that the purpose is clearly stated (i.e. whether zero tolerance or if there are different requirements in parts of the business and the rationale for this)

• Update risk assessments of roles - to determine safety critical roles

• Deal with specific ‘uncertain areas’ - e.g. what does fitness for work mean in terms of the hangover effects of drugs and alcohol?

• Update what drugs are included - (e.g. medicinal cannabis)

• Clearly set out what constitutes a breach - so employees clearly understand how even out of hours drug use may place them in breach

• Rethink your training and communication - use plain English to spell out the requirements so there is no room for confusion or misunderstandings, e.g. what happens if there is a non-negative result and the potential outcomes

• Ensure any policy changes are tailored

  and specific to the workforce and job requirements

• Use comprehension testing - to remove the ‘doubt’ of what employees understand and don’t regarding the policy

• Keep up to date records - of the consultation process, including training attendances and any communications outside of training

• Ensure there is a thorough ‘show cause’ process where dismissal is seriously considered and demonstrate how the ‘balancing exercise’ was undertaken

To assist retainer clients we have created two new draft policy templates that can form the basis of implementing an updated policy in accordance with the above action items.

1. Zero tolerance version - which will only be appropriate for high risk/safety critical environments where AOD matters are “Cardinal Safety Rules” eg mining, rail and public transport etc; or

2. Standard version - which will only be appropriate for non- high risk safety environments eg administration, retail etc

We can also review retainer clients’ changes, risk assessments and implementation documents to ensure they are effective.

Edge Legal

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