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Unfair Dismissal Wa Says: Failing To Report Use Of Prescription Drugs Is Not Serious Misconduct

By Author: Martin Crow
Total Articles: 13

A company that manages transportation services had a policy requiring its employees to disclose information about prescription drugs they were taking. The company hired a compliance officer to administer drug and alcohol tests on its employees that drove or operated public transportation vehicles.

The compliance officer had not disclosed that he was taking a non-steroidal anti-inflammatory drug called Neurofen Plus. He failed to tick of a box in an employment form and he failed to name the drug on his employment form called a medical declaration. He had been working for the transportation management company for four years.

One day, the superior of the compliance officer advised him that an audit was to be conducted. He was informed that the key performance indicators were low. The superior then told the compliance officer to self-administer a saliva test on himself.

The compliance officer thought that he was doing a demonstration of the tests, he did not think that he was going to be tested. He made a point of the saliva testing being unreliable. When he administered the saliva test, he quickly threw away the result, for he did not understand that he was being tested himself. He also pointed out that self-administered tests are not regular or acceptable practice and his superior was not a licensed tested who can interpret results. He also informed the superior that self-administered tests will not count as part of KPIs. His superior took the test packet that the compliance officer threw away and it showed that the compliance officer tested positive for opiates, an active ingredient in Neurofen Plus.

He was then stood down for failing to inform his employer that he was taking the drug, for failing to file a medical declaration, and for throwing away the test packet to hide the positive result for opiates and deceive his employer. However, when the decision to dismiss him was made, the HR Manager wrote in her report that the performance of the compliance officer was subpar, he had been placed on performance management before, he had falsified his timesheet, he had left the workplace without authorization, he lacked willingness to comply with policies and procedures, he refused to acknowledge wrongdoing or that improvement was required, and he had shown no remorse for his actions. On his part, the compliance officer explained that his failure to abide by the no drugs policy of his employer was not brought about by his refusal to abide by the policy – it was brought about by his erroneous thinking that the drug ban did not apply to him because he had a desk job and did not operate a vehicle. He honestly thought that as he did not operate a vehicle as part of his employment, the policy of disclosure did not apply to him as well. He was still dismissed for serious misconduct.

The Fair Work Commission found unfair dismissal of the compliance officer.. First, his failure to comply with policy was not deliberate but only because of his erroneous interpretation of the policy. Second, he was not dismissed for having taken drugs, he was dismissed for failing to disclose the fact that he was taking drugs and filing a medical declaration. Third, the allegation that he had thrown away the test packet to hide the positive result was not proved. These acts hardly constitute serious misconduct.

The FWC found that the other allegations against the compliance officer showed a troubling pattern. Some of the allegations were for actions allegedly committed two years before the dismissal. And in finally dismissing the compliance officer, the employer relied on the allegations of falsifying the time sheets and the breaches of the drug policy. This showed that the HR Manager overreached in finding reasons to dismiss the compliance officer, thus, showing unreasonableness in the process of the dismissal.

Lastly, the FWC found that the dismissal was harsh as his role was of a specialist and he has had extreme difficulty in obtaining other employment in the same field. He could no longer afford rent and he had relinquished his home and his car has been repossessed. His claim for reinstatement was denied as the relations between him and his employer have become strained. He was awarded the amount of $17,795.08 in lieu of reinstatement.

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