Worker fired for questioning co-worker’s positive drug test
A worker has won his unfair dismissal claim after he was fired for questioning a co-worker’s positive drug test.
The man felt upset that his boss did not follow its “zero tolerance” policy against substance use.
He described the treatment as unfair since management had previously stood him down for the same reason.
Worker fired for questioning co-worker’s drug test
James Casey worked for Mildura & District Pest Management in Victoria since November 2021.
On 4 July 2023, he met with the company’s business manager seeking clarification about a decision not to suspend a co-worker after a positive drug and alcohol test.
Mr Casey requested an explanation for what he considered was unfair treatment by his employer.
The conversation between the parties escalated into an argument, during which Mr Casey indicated his intention to resign.
The manager directed him to leave the workplace and return with a written resignation.
Following a meeting with those involved, the owner/director of the company decided Mr Casey’s actions constituted serious misconduct.
Police called
Mr Casey later returned to the administrative office, where he again engaged in a second conversation.
During these talks, the administrative manager contacted the police due to alleged concerns about the worker’s behaviour and his failure to leave the workplace.
Following a meeting with those involved, the owner/director of the company decided Mr Casey’s actions constituted serious misconduct.
The employer then communicated his decision to dismiss to Mr Casey in writing.
The Commission found that Mr Casey thought management had treated him unfairly and denied engaging in serious misconduct.
She lost her cool
During his unfair dismissal hearing, Mr Casey told the Fair Work Commission:
“We had a drug test on the day I was dismissed – last year, a co-worker and I got stood down for 2-3 days for failing it for THC.
“This time around, a different worker failed it but was allowed to work, although our contract states there is [zero] tolerance for drugs and alcohol.
“I went into the office and expressed how unfair I believed it to be on behalf of myself and all my co-workers.”
The Commission found that Mr Casey thought management had treated him unfairly and denied engaging in serious misconduct.
He said that “while he raised his voice in both the conversations with the [administrative manager,] he did not ‘lose his cool,’ remained calm and just attempted to seek an explanation and subsequently be heard.”
He argued that the manager was the one who “first raised her voice and lost her cool.”
On the other hand, the employer disputed these allegations and said that they adhered to the Small Business Fair Dismissal Code.
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Unfairly dismissed
“While the [worker’s] conduct on 4 July 2023 was certainly not appropriate for an employee to engage in, the evidence is that what was said and what occurred during these conversations was not entirely [his] responsibility,” the Commission said.
“The [administrative manager] also has some responsibility for what occurred during that exchange,” it added.
“In any event, [the worker’s] conduct was not sufficiently serious enough to justify a termination of employment without notice or a concern of impending violence.”
Thus, the FWC said that the employer did not have a valid reason to dismiss the worker.
It also found that it did not give him reasonable notice or an opportunity to respond.
It then ordered the employer to pay $2,050 compensation.
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