On 4 October 2024, the Fair Work Commission in Lee Witherden v DP World Sydney Limited [2025] FWC 294 ruled in favour of a DP World employee, with Deputy President Wright finding that termination of employment was harsh and unreasonable in the circumstances – despite the employee returning a positive result from a random drug test.

What happened?

In June 2024, DP World Sydney Limited dismissed an employee who returned ‘high readings of cocaine metabolites’ from a random drug test. The employee, who admitted to using cocaine heavily on their days off before the day of the drug test, stated that they stopped using the drug 24 hours before their rostered shift and were not impaired by the drug when they attended work.

Following termination, the employee lodged an unfair dismissal application, arguing that the termination was unfair because they:

• had a nearly unblemished 26-year employment history with the employer;
• had previously passed around 40 drug tests;
• were not impaired by drugs at work – and therefore there was no risk to health and safety; and
• suffered from mental illness and drug dependency issues, which the employer did not take into account when determining whether termination of employment was an appropriate outcome.

Relevantly, the employer’s Alcohol and Other Drug (AOD) Policy did not expressly state that a positive test for non-active metabolites – substances that remain in the body for some time after the drug’s immediate effects have worn off – could lead to termination of employment.

During the Commission hearing, the employee said that while they were generally aware of the AOD Policy, DP World did not explain to them what it meant to be ‘fit for work’ under the AOD Policy, the significance of cut-off levels and how the Australian Standards apply.

The employee also claimed that they knew they were not impaired by drugs when they attended work (and would never endanger others by coming to work impaired), and therefore believed they were ‘fit to work’.

What did the Commission determine?

The Commission found in favour of the employee adding that:

1. There was a valid reason for dismissal because the employee breached the AOD Policy when they attended work and tested positive for cocaine metabolites.
2. However, because the wording of the AOD Policy was vague and ambiguous, the employee had not knowingly breached the AOD Policy.
3. Also, the Employer did not adequately train its employees about the application of the AOD Policy – for example, employees did not know that a positive result could include a positive test for drugs and inactive metabolites.

Overall, the lack of clarity and adequate information, coupled with the lengthy employment history, cooperation with the disciplinary process and remorse, weighed in favour of the Commission finding that the dismissal was harsh and unreasonable.

Communication is key

In another recent Commission proceeding (also decided by Deputy Commissioner Wright), considering the enforceability of an AOD policy, it was determined that termination of an employee was harsh despite the employee returning a positive blood alcohol content (BAC) reading (initially 0.025% and then 0.017% on the confirmatory test) in circumstances where:

• the company had recently moved from a 0.02% BAC limit to a 0.00% BAC policy for employees;
• change was communicated to employees by email only; and
• the stevedore employee claimed he did not read the email and was therefore not aware of the change (noting the second reading was within the old BAC limit).

The Deputy President questioned whether email was the best way to convey important messages about changes to safety related policies, especially with a largely non desk-based workgroup and noting that many did not even have a work email address. The Commission suggested that the company appeared not to have contemplated this issue and added that dedicated training for important WHS changes should be provided and require signed acknowledgment confirming understanding of changes from employees.

Reinstatement was ordered but the claim for backpay was reduced by 50% acknowledging that despite the harshness of the decision, the employee had breached the policy.

Key takeaways

This case is an important reminder to employers to have clearly drafted, contemporary and enforceable AOD policies that ensure understanding and fair processes (particularly if employers intend to rely on non-compliance with AOD policies as a reason for termination).

However, a well-crafted AOD Policy is not the end-point-policy obligations and non-compliance consequences must be effectively communicated, including, for example, through training delivered to their employees about the policy and how it will be applied.