He failed a drug test. The FWC reinstated him. Why?

One Minute Summary

The employee inhaled twice on Friday evening as a cannabis cigarette was handed around. A self-test kit he used on the Sunday provided a negative THC result.
A workplace test on Monday indicated cannabis metabolites in his system and he was stood down pending a lab test.
The employee had a 27-year clean record with no performance issues.
Three policies were applicable in relation to drugs at the workplace.
While the Commission accepted his termination was valid for a breach of policy the surrounding factors resulted in the termination being unjust and unfair.

An employee who failed a drug test for cannabis has been reinstated by the Fair Work Commission. Mr Brew, a Supervisor, had been employed by Downer EDI for more than 27 years. At a dinner at his home on Friday 27 August 2025, he inhaled a cannabis cigarette twice which was being shared among a group of friends. On the Saturday he purchased a THC self-testing kit which he used on the Sunday. The test showed a negative result for THC.

On Monday (25 August) he was drug tested on arrival at work and was told the test result was a ‘non-negative’ for THC. In the hearing he expressed concern that the test kit used was already open and that he was not offered a second test – which was required under Downer policy. He was stood down while a laboratory test was conducted.

The lab test came back at 41ug/L which was above the Downer cut of level of 15ug/L. It was therefore confirmed as a positive result. On 28 August Mr Brew received a ‘Show Cause’ letter asking him why his employment should not be terminated for serious misconduct. Mr Brew was very transparent in his response providing information on when he had smoked, the self-test kit he purchased and the result, the questions around the test and that he did not receive a second test at the time. He also pointed out he had an unblemished record (including safety) for 27 years of employment and that he was not a cannabis user.

Following this meeting the decision examined at a serious of meetings which included the advising HR representative, several layers of management and the Executive General Manager.

Downer has what are termed ‘Cardinal Rules’ which appear to be overarching company rules dealing with serious conduct issues. The HR representative stated that Mr Brew had breached a Cardinal Rule for which termination was the only option. The Cardinal Rule stated, ‘Never consume or be under the influence of alcohol or non-approved drugs in the workplace’.

Looking at the circumstances more broadly Mr Brew’s immediate manager expressed the view that termination was too harsh a response. However, the HR representative stated that since a cardinal rule had been breached termination was the only option. Senior management accepted this and decided termination for serious misconduct was appropriate.

During the unfair dismissal proceedings Deputy President Slevin accepted the expert opinion of Professor Robert Weatherby, that finding cannabis metabolites only proves previous cannabis use – and not that someone is currently intoxicated or impaired. His view was that at the levels shown, Mr Brew was neither intoxicated or impaired. The DP also accepted the opinion of the Downer expert witness, Dr Lewis, that the detection of cannabis metabolites was the accepted means to determine the presence of drugs including THC.

The Deputy President stated:

‘I find that the test result was not a breach of Cardinal Rule 10 which is about consumption or being under the influence of drugs and alcohol. Mr Brew had not consumed and was not under the influence of THC on 25August 2025……. as he did not perform any work under the influence of alcohol, illegal drugs or any substance that could prevent him from performing his job safely or effectively.’

However, Deputy President then stated, ‘Termination of employment will be justified where a policy identifies dismissal as an outcome for breach of a drug and alcohol policy.’

The company’s Managing Misconduct Standard stated that returning a positive result in a test conducted for drugs or alcohol is serious misconduct. It then states that serious misconduct may lead to dismissal.

Given that this Downer policy had technically been breached by Mr Brew the DP found that there was a valid reason for termination.

The Deputy President then examined other matters related to the termination.

It appears as though drugs and alcohol are covered by a number of documents including the Cardinal Rule, the Managing Misconduct Standard and the Drugs and Alcohol Policy.

The Drugs and Alcohol Policy did not dictate dismissal for testing positive to drugs or alcohol. The policy stated that while the Downer goal was zero alcohol and other drugs it did not state zero tolerance that dismissal must follow a positives test result. The policy stated that when there is a positive test result: ‘The employee will be found to have breached Downer policy and will be subject to disciplinary action which may include termination’.

Another area explored by the Deputy President was the testing process including the opened test kit and the failure to provide a second test at the time as required by policy.

Looking at all the surrounding factors the best way to summarise them are to use the Deputy President’s own summary in the decision as follows:

‘While here Downer did to some extent take into account the mitigating circumstances raised by Mr Brew, it failed to consider those factors adequately as it took a zero tolerance approach that had the effect that the policy breach mandated dismissal. It did not. There were other sanctions available to Downer under the standard and I find that they were not given adequate consideration. The matters that should have been considered that were not included:

‘Mr Brew had worked for the company for 27 years.
‘He had never received any written warnings.
‘He had made a significant contribution to the company during that time having received awards for his performance including in regard to safety.
‘Mr Brew’s cooperation and explanations in the investigation process.
‘His admissions about smoking cannabis
‘His explanation that using cannabis was out of character for him and not a regular habit.
‘The low level of metabolites in his system.
‘The steps he took to satisfy himself that he was fit for duty by conducting a self-test.
‘His repeated confirmations that he always takes company policies and safety seriously.
‘His openness to discussing ways to keep his job, including by taking regular drug tests.

In conclusion Mr Brew was reinstated and Downer was ordered to pay lost wages and maintain continuity of service for the period September 2025 to the date of the decision 23 March 2026.

Commentary

Employers should not that Zero tolerance of safety issues such as drugs and alcohol in the workplace (which the DP commended) does not automatically mean a breach should result in an automatic termination.

Employers should be wary of having too many layers of policies and procedures covering the same workplace topic. In this case we have Cardinal Rules, the Managing Misconduct Standard and the Drugs and Alcohol Policy. This can be confusing for employees and for managers in how they are applied. Confusion leads to difficulties when facing a Fair Work hearing.

The Cardinal Rule in this matter had a flaw as it was specific about consuming while at work and being under the influence. As stated by the expert witness you can have cannabis metabolites in your system but not be under the influence.

The test result of 41ug/L is considered to be a very low-level result. Most workplace test use a 50ug/L cut off for THC metabolites. A cut off of 20ug/L is considered to be a very sensitive test with a higher chance of a ‘false positive’. Yes, Downer operates in a heavy industry environment, but a cut of 15ug/L is extremely low. The decision states that Downer had an alcohol level of 0.00%. Heavy industry often runs at 0.02% because it is possible for drink consumed the day prior or a dose of the wrong cough syrup to show up.

The Deputy President made an interesting observation stating that: ‘Termination of employment will be justified where a policy identifies dismissal as an outcome for breach of a drug and alcohol policy.’ This was based on prior cases where this finding has been endorsed. I don’t believe this is a ‘carte blanche’ situation. Your policy does still need to be reasonable and employers are obligated to ensure employees are fully aware of the contents especially where breaches of such policies have serious consequences such as termination.

Please contact Hunter Employee Relations if you require assistance with policies or procedures or with a potential disciplinary matter.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au