The Fair Work Commission has dismissed an employee’s Unfair Dismissal claim despite there being procedural deficiencies in the termination process. A forklift driver who had been employed at Pmfresh Pty Ltd for approximately 3.5 years was terminated after admitting to regular drug use following a workplace incident and claiming that he could not do much damage with the equipment he was operating.

At the time of the incident the employee was operating a forklift to remove pallets of vegetables from racking shelves. While performing this task, a fellow colleague entered the warehouse. The employee reversed the forklift to go and talk to his colleague.

After a short conversation, the employee drove his forklift forward, colliding with some pallets that he had previously placed on the floor. CCTV footage shows that the load that was on the forklift at the time was obscuring the driver’s line of sight. The employee claimed that the conversation with his colleague had distracted him, and he had forgotten where he had placed the pallets.

This was not the first time that the employee had been warned about workplace safety practices.

A short time after the incident, a meeting was conducted between the employee and management of Pmfresh. When management asked the employee whether he had used drugs recently, the driver confirmed that he had smoked marijuana the night before coming to work.

During the meeting, one of the managers stated “Look, because you said you smoked last night, there’s no need to send you for a drug test because you’re going to come back positive.”. The employee agreed with the statement. The employee was immediately stood down pending further investigation.

During the hearing, the employee attempted to argue that he was not under the influence at the time of the incident. However, the commission indicated that:

“There are certainly different views on drug and alcohol impairment in the workplace and a variety of approaches to managing it. The reality is that there is no widely accessible, on the spot method to accurately test for drug and alcohol impairment in the workplace. Instead, workplaces will test for the presence of a substance in an employee’s system at a point in time using either saliva or urine testing.”

An investigation was commenced, and the employee was invited to another meeting four days later. The employee indicated that he had been a marijuana smoker for a 35-year period but had never used drugs before coming to work.

A further meeting was conducted the following day at which the employee was terminated. A formal termination letter was sent to the employee following this meeting.

The commission was critical of Pmfresh as they failed to formally notify the employee of the findings of the investigation, nor did they give the employee a formal opportunity to respond.

The commissioner indicated that the best approach would have been to conduct a drug test however, Pmfresh was entitled to reach the view that the employee was impaired at the time of the incident because:

1. The employee was open about the recency and the regularity of his marijuana usage;
2. There was no need to undergo a drug test as it would return a positive result;
3. The driver’s concentration and memory was affected that day, given he had forgotten where he had placed a pallet down a mere 30 seconds or so beforehand.

The commissioner found that the procedural deficiencies are outweighed by the reasons for the dismissal.

Lessons for Employers

• Employers should follow best practice procedures in order to reduce the risk of Unfair Dismissal claims;
• When conducting a workplace investigation, it is important to allow the employee an opportunity to respond and inform them when a formal decision has been made;
• Ensuring that there is a clear reason for dismissal is vital to termination even where there are procedural deficiencies.

If you would like to discuss these or other workplace issues, please contact Andrew Bland or call 02 9412 3077.