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Resignation after drug test not dismissal: FWC

A FORMER power plant employee has failed to persuade the Fair Work Commission that he was constructively dismissed after two positive drug screenings prompted him to tender his resignation during the company’s disciplinary procedure.

The former rail safety operator filed a claim for unfair dismissal after failing a random drug test at Alinta Energy’s Port Augusta power plant in South Australia, 36 hours after taking amphetamines by his own admission.

The random drug screening returned positive results twice on the same occasion, prompting the company to investigate the matter in line with its zero-tolerance approach to drug use in the workplace.

Learning from a representative of the Construction, Forestry, Energy and Mining Union (CFMEU) that he would likely be dismissed without receiving any pro rata long service leave entitlements, the employee opted to resign from his position during his disciplinary interview.

In a hearing before the Fair Work Commission’s Senior Deputy President O’Callaghan, Alinta Energy argued the employee had no grounds for an unfair dismissal claim because he had resigned.

However, the employee argued his decision to resign amounted to constructive dismissal, citing that he ‘had no choice’ but to resign.

Following his position claiming dismissal, the employee said his dismissal was unfair because Alinta Energy had failed to properly train him in the company’s safety policy, which he believed to have included a ‘three strikes’ rule.

Alinta Energy, however, provided evidence showing the employee had been trained in the significance of the company’s zero-tolerance policy for drug use.

Further, the employer argued that in line with its policy, a dismissal resulting from the presence of drugs was not harsh, unjust or unreasonable.

In considering the situation, Senior DP O’Callaghan commented that Alinta Energy did have reasonable grounds for dismissing the employee.

“Given the nature of its business as a power generator, together with the equipment used and work functions undertaken by employees, a zero tolerance approach to drug and alcohol use in the workplace is both reasonable and required,” Senior DP O’Callaghan stated.

“In this respect I am satisfied that termination of employment in circumstances where an employee returns a ‘non-negative’ test result could be expected, depending on Alinta Energy’s assessment of the particular circumstances of an employee.

Further, he further determined the employee had not been dismissed in the first place.

“In these circumstances I am satisfied that Alinta Energy was properly following its disciplinary practices procedures and, at the time at which [the employee] sought to resign, had not advised him of the termination of his employment,” Senior DP O’Callaghan said.

“It would be inherently unfair to conclude that a reasonable and fair investigation process represented a course of action intended to force an employee to resign simply because, in this circumstance, the employee had no excuse for their significant misconduct.

“…I have concluded that [the employee] resigned in order to protect termination payments that would otherwise not be available to him given that he agreed that he had used drugs, failed the drug test and not provided any mitigating circumstances.”

On grounds the employee had not been dismissed, the application for unfair dismissal was dismissed.

Click here to read the full decision.

Implications for Employers

In an industry where heavy machinery, explosive materials and molten metals are core components of operation, AREEA members are well aware of the risks posed by employees working under the possible impairment of drugs and alcohol.

This case highlights the importance and benefit of having a clear and concise company policy regarding drug and alcohol screenings, as well as the disciplinary procedures resulting from positive test results.

After several previous cases where employers’ drug and alcohol testing procedures have been questioned or interfered with by various commissioners, this case also represents a much welcome endorsement for a ‘zero tolerance’ approach to drugs and support for managerial rights to manage such safety risks.

AREEA’s workplace relations consultants can help AREEA members develop company codes of conduct to protect workers from risks associated with drug and alcohol use. Contact your local AREEA office for more information.

Additionally, AREEA members will also benefit from workforce training and reporting systems that ensure employees are well informed of such company policies. AREEA Training & Development offers specialised health and safety training to resource industry employers throughout Australia. Contact 1800 627 771 to speak to an AREEA training consultant.

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