George Haslett v SuperSealing Pty Ltd.  FWC 1622 (U2015/13372). Wilson, C. 18 March 2016.
George Haslett (the applicant) was employed by his brother’s business, SuperSealing Pty Ltd, as a “crack sealer”, working on public roads to repair cracks in the pavement. He was employed between 25 May 2003 and 23 September 2015. His son still works in the business.
Mr Haslett was dismissed in September 2015 for serious misconduct related to his drug use.
In the course of employment, he drove medium and heavy class vehicles.
His employment conditions included a telephone for work-related and private use, and a motor vehicle, including for private use, and he lived in a house owned by his brother.
It was the company’s policy to drug test its employees. The applicant on one occasion admitted that he would not pass the test, and it was agreed that he take leave.
Subsequent drug tests were pre-arranged on eight (8) occasions, which the applicant only attended to two (2). Both are urine drug screens and both show the detection of amphetamine type substances. Mr Haslett puts forward about this period and earlier that he had been depressed,
After receiving the results of the first drug test, conducted on 1 September and reported on 3 September 2015, Mr Haslett was warned in writing about the consequences of the matter. The company characterised it as serious misconduct and confirmed that he was stood down without pay as a result. The company quoted its drug policy in its letter to the applicant, and included:
“If your conduct does not improve, (or if there are any further performance or conduct issues of any kind) further disciplinary measures may be taken, which may include the termination of your employment.”
On 14 September 2015 was taken by the company representatives for a second drug test, which he did not pass either.
The commissioner considered:
“…Mr Haslett, when he was performing work, was required to use heavy machinery with clear implications for his ability to perform that work safely if affected by certain drugs. The context also includes SuperSealing’s Drug & Alcohol Policy which views alcoholism and drug use as a treatable illness, indicating that in appropriate situations where an employee’s performance and well-being has been adversely affected by alcohol or drug use SuperSealing may assist the employee with referral to treatment programs. The context also includes that following Mr Haslett’s failure to pass the drug screen taken on 1 September 2015, he was warned about the consequences of repetition and stood down from work without pay until he was able to pass a negative drug test, being one which indicated that non-prescription drugs were not within his system.
“Further it would be an incorrect reading of the policy to take the view that it is entirely up to SuperSealing to offer or arrange assistance to employees. There are mutual responsibilities under the policy, with Mr Haslett holding responsibilities for his rehabilitation as well as SuperSealing. This is also not a situation where SuperSealing have taken a purportedly “zero tolerance” approach to a test indicating an employee may be affected by non-prescription drugs. It is not even a situation where the company has dismissed an employee after a failure to pass a second drug test.
“Instead, it is a situation where Mr Haslett was warned after the first failed drug test about the consequences of repetition for his future employment; was then sent for a second drug test which was failed; and then was given a third chance to demonstrate that he was fit for work, which he did not take up. It was only when Mr Haslett chose not to take up the third chance afforded to him that the company moved to dismiss him”.
The Commissioner finding that the applicant was fairly dismissed.
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