Case

Witherden v DP World Sydney Limited (2024)

An employee had been on leave due to a shoulder injury and had been using cocaine to deal with depression associated with his injury. On his return to work, the employee took a drug test in which he tested negative for cocaine; however, he tested positive for cocaine metabolites, indicating that he had used cocaine recently. The employer’s drugs and alcohol policy stated that if a test returns drug metabolites above the Australian standards, the employee will be in breach of the policy.

The employee admitted to using cocaine 24 hours before his rostered shift. He stated that he was using cocaine as a coping mechanism for mental health issues associated with his shoulder injury. He admitted that he made a “stupid” decision and had already engaged with a counselling service. He also stated that he felt normal when he woke up before work and was unaware of how long the cocaine would stay in his system. The employer responded that while it was sympathetic to the employee’s circumstances, it did not excuse his conduct, and he had breached the drugs and alcohol policy by exposing himself and others to unnecessary risk. The employer dismissed the employee summarily for serious misconduct.