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Too Clever by Half: Don’t Quibble With the Cut Off Points for Drug Testing

In a recent Fair Work Commission decision (Eather v Whitehaven Coal, Deputy President Sams, 1 January 2018), the FWC had no sympathy for an employee whose employment was terminated when he recorded 18mcg of cannabinoids, compared to the Australian Standard of 15mcg as the maximum allowable.
Mr Eather claimed that the company’s testing practice misled him; that practice being the use of screening cups for urine testing, which were only capable of registering concentrations of 50mcg or above.  He claimed that this was the standard which should apply.  However, the Commission held that Mr Eather was well aware, from both policy and experience, that a non-negative screening test result meant that the screening test would be sent to a lab for more precise assessment, and that this would similarly be the case for follow-up tests.

Mr Eather had a non-negative result on a random screening test, which was confirmed as 65mcg by the subsequent lab analysis.  Under Whitehaven’s drug and alcohol policy (which all parties agreed was not a zero tolerance policy), Mr Eather was suspended for 3 weeks with the option of taking leave without pay, or using annual leave – with the requirement being that he test clear for cannabinoids by not later than 3 weeks after the first test.

The evidence was that Mr Eather was acutely aware of the risk of losing his job at the end of the suspension, as he had informed several people that during this period he was drinking a lot of water, and exercising extensively, in order to “sweat out” the cannabinoids from his system.  This was despite his evidence (found to be inherently unlikely by the Commission), that the only time he had used marijuana in over 10 years was when he happened to smoke 2 joints, 5 days before the reading of 65mcg.

Mr Eather’s conduct strongly suggested that he was a regular cannabis user, with a substantial build-up of cannabinoids in his system.  Deputy President Sams said:

“Regrettably, but perhaps not surprisingly, the applicant was so determined to convince the Commission he should get his job back, that his evidence was littered with implausible and fanciful explanations and blatant inconsistencies”.

Mr Eather claimed that he understood that he only needed to be under the 50mcg level at screening, not under the 15 mcg level used for lab tests.  Whitehaven’s policy referred to “Australian Standards” without referring specifically to the 15mcg limit.  However, the Commission took the view that from past experience as an employee in the mining industry, Mr Eather was well aware of the lab testing which would follow a negative screening test, and of the lower level which applied for lab testing.  

The Commission also took the view that it was not an attractive position to quibble about higher levels being OK, given the safety issues which were involved in having someone potentially affected by marijuana on a dangerous worksite.

Mr Eather had substantial “sympathy” factors in his favour, including needing to support 6 children, and the scarcity of work in a regional town.  However, given both the unreliability of his evidence and his willingness to take a chance on the test results whilst mounting specious arguments about unfairness; and despite the apparent fact that he was a long term and habitual user of marijuana, those factors cut no ice with the Commission.

Whitehaven’s policy was upheld because:

(a)    it operated in a safety critical environment;
(b)    the policy was clear enough and well known;
(c)    it’s process in dealing with Mr Eather had been scrupulously fair; and
(d)    Mr Eather’s claims were inherently unlikely, and his criticisms of the policy were too clever by half.

The lesson employers can draw from this case is that when fairly applied, a clear and well-communicated drug and alcohol policy will be enforced due to the safety implications of a breach of that policy – even where an employee may be able to mount sympathy factors for being given another chance.

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