The Fair Work Commission found the dismissal of a Dump Truck Operator for self-medicating with THC was unfair, despite there being a valid reason for the dismissal.

Background

The Workpac employee claims to have smoked half at joint at 8.30pm in January 2025, the night before his shift, due to mental health issues, including anxiety and stress linked to a family separation.The next day before attending work, he used a saliva self-testing kit (provided by the host employer Batchfire) which returned a negative result. He presented to work, where Batchfire conducted a drug test. The
result was non-negative, so they did a subsequent test, which came back as negative. He was sent home, but his Supervisor (from Batchfire) told him he was required to attend for this shift the following day.

The next day he did another self-test at home, which was negative and at work he was tested again, which also returned a negative result, so he went to work. However, Batchfire later called him back stating that the result had changed to non-negative. He provided a further sample, which the lab confirmed was non-negative, and this led to his dismissal.
 

Inconsistencies in employer and host-employer drug & alcohol policies

Workpac’s policy was zero tolerance, with any result over 0% being considered a breach and grounds for summary dismissal. This is the policy that applied to the Operator, as their direct employee.

Batchfire's policy provided for a cut-off limit of 25ng/ml, however the self-testing kits they provided to workers only had a threshold of 15ng/ml.

Workpac's procedural failings

The Commissioner found that Workpac did not consider the concerns raised in the employee’s show cause response and solely relied on the lab results of the positive test to justify summary dismissal under their policy (which was a valid reason).

The employee argued that he was set up to fail because Batchfire’s self-test kits had a lower cut off limit than their policy, effectively resulting in a false non-negative for anyone with trace levels over 15ng/ml but under the prescribed limit of 25ng/ml. He also raised concerns about deficiencies in the chain-of-custody, stating that one test had been opened before he had arrived.

The Commissioner found it "completely understandable" in the circumstances that the Operator "fully expected he was fit to work" as directed the following day. The Commissioner was inclined to award 6 months’ compensation, but because the Operator attended work for two days with THC in his system, he halved the compensation awarded to 3 months ($37,220). 

Lessons for employers

If you are a contractor or labour hire employer with employees working on client sites, ensure employees understand which D&A Policy applies to them.

Genuinely consider all factors of the case and don’t assess misconduct in isolation, especially where it could be viewed that the employee has acted responsibly, e.g. self-testing before work, with a negative result.