Shane Clayton v Coles Group Supply Chain Pty Ltd (2016)

Facts

Mr Clayton lodged an unfair dismissal claim against Coles Group Supply Chain (Coles) in relation to his employment in the operation of various forms of manual-handling equipment, such as forklifts, in which he was required to hold a high-risk licence.

In January 2016, Mr Clayton was involved in a forklift incident at work with another employee. While there was no damage to persons or property, and it was agreed that Mr Clayton was not at fault, he and several other employees undertook an on-site oral fluid drug test.

The results found THC in his blood and indicated that it was most likely Mr Clayton had taken cannabis the morning of the incident. However, the resuIts did not demonstrate any evidence that Mr Clayton's performance was impaired. While Mr Clayton did not dispute smoking cannabis, he disputed the timing, claiming he consumed the illicit substance the evening prior to the incident.

After a disciplinary meeting in February 2016, Mr Clayton was dismissed without notice on the basis of a breach of Coles' drug and alcohol policy. Under Coles' Code of Conduct, which underpinned the policy in question, the company had a zero tolerance for illicit drugs. The policy also allowed for disciplinary action to commence in the case of a breach (including dismissal), as each employee was required to be 'fit for duty', and the presence of drugs or alcohol in their system did not equate to being fit for duty.

In line with the Code of Conduct and Managing Team Member Performance and Behaviour guidelines, Mr Clayton was dismissed.

Mr Clayton argued his dismissal was unfair on the grounds of:

• his breach of the policy not being a wilful, substantial or deliberate disobedience, particularly as he was allegedly advised during his induction training that he only needed to ensure he did not smoke marijuana within 3 to 6 hours of beginning his shift (which he did not do);
• the testing results allegedly being potentially flawed;
• his consumption of cannabis was linked to workplace stress and formed part of his strategy to manage his stress; and
• Coles allegedly failing to consider alternatives to dismissal.

Judgment

The FWC held that a zero tolerance of drugs or alcohol in a company's policy may be reasonable. It also decided that a failure to comply with the policy would give heavy weight in concluding whether there was a valid reason for dismissal or not.

In light of this. and deeming Mr Clayton's conduct as reckless and misleading to Coles, the FWC found that a failure to comply with the company's drug and alcohol policy was deemed a valid reason for dismissal and was not harsh, unjust or unreasonable.

Lessons

Employers should be aware that it is reasonable to dismiss employees found under the influence of drugs or alcohol despite showing no impairment. Employers shouId ensure their company's drug and alcohol policies are:

• well-drafted. stipulating what is considered as acceptable and unacceptable behavior, what may be done in instances of such unacceptable behaviour, including any forms of disciplinary behaviour, such as dismissal;
• clearly communicated to all staff; and
• consistent-in this case. the FWC did not accept Mr Clayton's allegation that he was informed during his induct ion training that he only needed to ensure he did not smoke marijuana within 3 to 6 hours of beginning his shift.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.