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Every employer in construction, transport, and mining understands the expectation from SafeWork Australia: have a drug and alcohol policy, enforce it, and keep your workforce safe. The Work Health and Safety Act 2011 places a positive duty on every PCBU to eliminate or minimise health and safety risks so far as reasonably practicable. Drugs and alcohol at work sit at the top of that risk register.
So employers respond by implementing a zero tolerance policy. But lately this has turned to a total mess in Australia especially in (the great basket case) state of Victoria and NSW.
The Fair Work Commission is not buying Zero Tolerance Polcicies. Welcome to the confusion.
Between 2023 and March 2026, the FWC handed down six decisions involving workers dismissed under drug and alcohol policies. Four workers were reinstated or received significant compensation. One dismissal was fully upheld. The pattern is not random, and it is not employer-friendly.
Two Systems, One Workplace
Under the WHS framework, a PCBU must manage the risk of workers being impaired by drugs or alcohol, particularly in safety-critical environments. SafeWork NSW and its counterparts in every state expect employers to have documented policies, conduct testing, and take action when workers breach those policies.
The Fair Work Act 2009 (Cth) does not sit neatly alongside that obligation. The FWC can find a valid reason for dismissal exists and still order reinstatement if the dismissal was harsh, unjust, or unreasonable. A positive test is usually accepted as a valid reason in a safety-critical environment. But valid reason is only the first question. The FWC then examines proportionality, procedural fairness, and mitigating factors.
That is where most employers are falling short.
Six Cases Compared
| Case | Role | Breach | Valid Reason Found? | Outcome |
| Barber v Veolia Recycling FWCFB 141 | HSR, garbage truck driver | BAC 0.013%, confirmed at 0.007% | Yes | Reinstated. First breach, low level, written warning was sufficient |
| Tamati v MQT Pty Ltd FWC | Administration manager | Refused D&A test after 4-hour lunch | No | $63,500 compensation. Direction to test was not lawful or reasonable |
| MQT Pty Ltd v Tamati FWCFB 265 | Same (employer appeal) | As above | No | Full bench refused permission to appeal. Compensation upheld |
| Cormick v Sleepeezee Bedding FWC 347 | Heavy combination truck driver | Positive roadside oral fluid test (cannabis) | No | $31,304 in lost wages. No evidence of impairment at work |
| Potter v Cement Australia FWC 218 | Silo operator | Methamphetamines, 16x policy limit | Yes | Dismissal upheld. Expert evidence confirmed consumption approx. 2 hours before work |
| Brew v Downer EDI Works FWC 955 | Area supervisor, 27 years’ service | Cannabis, 41 mcg/L (above lab cut-off of 15, below on-site cut-off of 50) | Yes | Reinstated. Policy anomaly, unblemished record, not knowingly in breach |
| Goodsell v Sydney Trains FWC 3209 | Work group leader | Cocaine metabolite benzoylecgonine at 264 mcg/L | Yes | Reinstated. Metabolite pharmacologically inactive, no risk of impairment established |
What the Cases Are Actually Saying
Valid reason and proportionate response are two different questions
The FWC full bench in Barber v Veolia put it plainly: breaching a drug and alcohol policy in a safety-critical environment is a valid reason for dismissal. But the bench still ordered reinstatement because the BAC was low, it was the worker’s first breach, and the level would have been legally permissible for driving a personal vehicle. The bench stated: “The appropriate disciplinary outcome would have been for the worker to receive a written warning and be subject to self-testing or random testing in the future.”
The same reasoning applies in Brew v Downer. The area supervisor’s home test returned negative on the Sunday. The on-site test also returned negative under Downer’s own 50 mcg/L cut-off. The non-negative result only arose because the laboratory applied a much lower 15 mcg/L confirmation threshold, creating what Deputy President Slevin described as an “anomalous situation” in the procedure. He found the worker had not knowingly broken the policy, had a 27-year unblemished record, and was not impaired at work. Downer’s inflexible approach to the circumstances was held to be an important factor making the dismissal unfair.
Impairment matters, not just detection
In Cormick v Sleepeezee Bedding, the employer dismissed the truck driver about a week after his roadside positive test, before the confirmatory laboratory results had returned. Commissioner Clarke rejected the case directly: a serious and imminent risk to the health or safety of other road users cannot be established in the absence of evidence that the worker was in fact impaired. The national operations manager’s own evidence referred to “the potential risk of impairment”, and the Commissioner noted that nuanced wording reflected the shortcomings in the employer’s case.
In Goodsell v Sydney Trains, the FWC found the employer had “blindly” accepted the positive cocaine test as proof that the worker attended work under an impairment. Expert evidence showed that benzoylecgonine, the metabolite detected, is pharmacologically inactive with no impairing effects. Sydney Trains was also censured for failing to learn from the earlier Hilder decision, where the same systemic failings had already been identified. Nearly every member of the disciplinary review panel was a lawyer or people and culture specialist, and none flagged that the approach was problematic.
Your policy must be clear, and you must follow it
The MQT cases demonstrate what happens when a policy has gaps and managers are not across it. Three different managers gave three different explanations for requiring the administration manager to take a test: “on suspicion”, “post-incident”, and “duty of care”. None of these aligned clearly with the policy as written. The policy said nothing about the consequences of refusing to test and did not mandate dismissal for a non-negative result.
Deputy President Slevin found the direction to test was not lawful or reasonable in those circumstances. The administration manager was dismissed summarily for failing to follow a lawful and reasonable direction that was, in fact, neither. Compensation of $63,500 was awarded and upheld by the full bench on appeal. The bench noted that MQT had an experienced HR function and 1,300 employees, and the choice not to call its HR manager as a witness was MQT’s own failure, not a procedural unfairness by the Commission.
The one case where dismissal was fully upheld
The silo operator in Potter v Cement Australia tested positive for methamphetamines at 16 times the cut-off level under the company’s policy, which aligned with the relevant Australian Standard. He claimed he had snorted the drugs two days before the test on his days off.
Expert evidence, essentially unchallenged, established that the oral fluid test has a short detection window and the concentration detected was consistent with consumption approximately two hours before the test, not two days. Commissioner Redford accepted those conclusions as inescapable: the worker was untruthful about when he ingested the drug, turned up to operate heavy machinery in a safety-critical, isolated environment while impaired, and breached the policy. The Commissioner’s finding was direct: “He was impaired, even if he thought he wasn’t.”
The distinction matters. The employer had expert evidence. The worker gave inconsistent and ultimately implausible evidence. The concentration was extreme. Every factor that led to reinstatement in the other cases was absent.
What This Means for Your Policy
The FWC is not telling employers to abandon a zero tolerance policy. Deputy President Slevin in Brew v Downer called Downer’s approach “commendable and essential in the industry in which it operates”. But commendable does not mean immune from challenge.
Here is what the decisions actually require:
Policy construction. The policy must explicitly state the consequences of a breach, including the consequence of refusing a test. Review your policy against the SafeWork NSW guidance on alcohol and other drugs and confirm the disciplinary framework is unambiguous.
Testing thresholds. If your procedure involves both on-site and laboratory testing, your cut-off levels must be consistent. The anomaly in Brew v Downer, where the on-site test was negative under Downer’s own cut-off but the laboratory test was non-negative under a lower threshold, directly contributed to the reinstatement order.
Impairment assessment. A positive test result is not the same as evidence of impairment. For cannabis and cocaine metabolites, which remain detectable long after impairing effects have passed, address the impairment question in your policy and your investigation. Obtain expert evidence where the substance type, timing, or concentration level is likely to be contested.
Proportionality and genuine consideration. Before terminating, document your actual consideration of all available sanctions: written warnings, counselling, rehabilitation programs, and supervised or random testing. The FWC expects this analysis to be genuine, not a checklist run through on the way to a predetermined outcome. As the bench in the Sydney Trains case noted, a disciplinary process where nothing the worker could say would change the outcome is not procedurally fair.
Mitigating factors. Tenure, disciplinary history, remorse, and cooperation affect FWC outcomes. A 27-year employee with no prior breaches is a materially different case to a repeat offender. Your process must take this into account and document that it did.
If your current drug and alcohol policy does not address these requirements, or your termination process does not include a documented proportionality assessment, you are carrying unnecessary exposure. HSE Direct provides WHS consulting and compliance support for employers across construction, transport, mining, and renewable energy.
Frequently Asked Questions
Can I still dismiss a worker for breaching our zero tolerance policy?
Yes, a breach in a safety-critical environment is accepted as a valid reason for dismissal. But the FWC then asks whether the dismissal was proportionate, whether your own policy was followed, and whether mitigating factors were genuinely considered. A valid reason alone does not make a dismissal fair.
Do I need to prove the worker was impaired to dismiss them?
Not always, but it significantly strengthens your position. Several recent decisions turned on the absence of impairment evidence, particularly where the substance detected has a long detection window relative to its period of effect, such as cannabis and cocaine metabolites. Where impairment is likely to be contested, obtain expert evidence before proceeding to termination.
Our policy says zero tolerance. Does any positive result justify immediate dismissal?
The FWC has consistently found that zero tolerance describes the testing standard, not an automatic pathway to dismissal. You still need to consider the concentration of the result, whether it was a first breach, the worker’s history, whether they were actually impaired, and what your own policy says about available sanctions. Rigid application without considering individual circumstances has been described as disproportionate in multiple decisions.
What happens if a worker refuses to take a drug or alcohol test?
Refusal can be a valid reason for dismissal, but only if the direction to test was lawful and reasonable, the basis for the test (random, post-incident, or on suspicion) was clearly communicated to the worker, and your policy specifies the consequences of refusal. The MQT cases are a direct warning on this point.
We are a principal contractor. How does this affect us?
As a principal contractor you carry WHS duties for the whole site, including managing impairment risks among all workers and contractors. The unfair dismissal claim sits with the employer of record, but your WHS exposure under the Work Health and Safety Act for failing to manage drug and alcohol risk on site remains regardless of who the direct employer is. For site-specific advice, contact HSE Direct for a compliance review.
Can a full bench completely change an outcome on appeal?
Yes. In Barber v Veolia, the full bench found the original Commissioner had made findings that went beyond what the employer put forward, denying the worker a fair opportunity to respond to them. It redetermined the matter from scratch. Procedural fairness applies at every stage, including your internal investigation and termination meeting.
This article is for general information purposes only and does not constitute legal advice. For WHS policy reviews, drug and alcohol program support, or compliance audits, contact HSE Direct.
