воскресенье, 4 сентября 2016 г.

Австралия. Работник утверждал, что курил коноплю вечером предшествующего работе дня. Говорил о том, что компания-наниматель разрешает употребление определенных наркотических средств за 6 часов до работы. Говорил о том, что положительный результат теста на содержание наркотических средств не является безусловным и однозначным основанием для увольнения работника, в соответствии с утвержденной Политикой компании-нанимателя. Наконец, говорил о том, что наркотическое средство ему рекомендовал врач для преодоления стрессового состояния, приобретенного на работе. Как можно понять, решающим стал факт того, что специалист компании-нанимателя, проводивший тест заявил о своем подозрении, что работник принимал наркотическое средство менее чем за 6 часов до работы. Суд не удовлетворил иск работника о незаконном увольнении.

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Thursday 1st September 2016
Zero tolerance for drugs ends in dismissal
In today's Health & Safety Bulletin:
  • But worker says he was misled about the time cannabis would remain in his system
Jeff Salton PortraitA Coles Group Supply Chain forklift driver, Shane Clayton, who breached the company’s zero tolerance policy for drugs and alcohol, has had his unfair dismissal claim rejected by the Fair Work Commission.
After a forklift incident at the Coles Edinburgh Parks Distribution Centre, SA, which was not the worker’s fault, nor was anyone injured or equipment damaged, the worker provided a ‘non-negative’ result for cannabinoids in an on-site oral fluid sample drug test.
Following further testing of oral fluid samples taken from Mr Clayton at that time, his employment was terminated without notice on the basis of a breach of Coles’ Drug and Alcohol (D&A) policy.
Coles D&A policy, described as being a ‘zero tolerance policy’ states, among other matters, that any level of (detectable) alcohol or illicit drugs will be a breach of the policy and lead to a sanction.
Serious breach at high risk environment
The Coles distribution centre covers approximately 70,000 m2, and is a high risk environment due to the workplace being busy with forklifts and reach trucks, as well as pedestrians. Coles has many policies and procedures operating at the facility, including the D&A policy.
At the follow-up meeting, Mr Clayton was advised that Coles considered that he had committed a serious breach of his employment contract and safe working practices due to the positive test result. Further, he was advised that coming to work under the influence [of drugs] was a serious breach of his “contract”.
The worker submitted that:
“After consultation with my [doctor] regarding anxiety and stress he advised me to go on Workcover and that it was directly related to work. After discussions about medication and my options I had made a decision to use cannabis for sleeping and anxiety issues. So not to look weak or unable to do my job to my colleagues/management. On the day of the incident I had not used any cannabis since approx. 5:30-6:00 pm the night before. I was not impaired in anyway.
“I was not nervous about taking a test as I was not impaired in anyway or did I feel any traces would indicate I had used cannabis nearly 24 hrs prior to the incident and subsequent testing.
“I was unaware cannabis would show any traces in my saliva. As I was fit & ready to work.
“I feel colleagues and management were not at risk in anyway and nor was Coles’ property or name.”
But after considering the worker’s response and discussing the matter with a Coles senior manager, Mr Clayton was advised that Coles had “no other option but to terminate your employment”.
Mr Clayton was dismissed at the 1 February 2016 meeting and was not given any notice or pay in lieu thereof.
In his defence …
Even though Mr Clayton admitted smoking cannabis (marijuana) on the evening before reporting for duty on 25 January 2016, he claimed his dismissal was unfair because:
  • the breach of the D&A policy was not wilful, substantial or a deliberate disobedience;
  • he was advised during the induction training to the effect that he needed to ensure that he did not smoke marijuana within 3 to 6 hours of the commencement of his shift and did not do so;
  • he reasonably believed that he complied with the D&A policy by leaving a considerably longer gap between his consumption of cannabis and his attendance at work;
  • his consumption of cannabis was linked to workplace stress and was part of his strategy to manage that circumstance; and
  • Coles failed to consider alternatives to dismissal; instead it interpreted the zero tolerance policy as meaning that dismissal was the only option.
Coles’ perspective …
Coles contended that the dismissal was not unfair because:
  • the D&A policy was reasonable and appropriate given the circumstances;
  • a single breach of the D&A policy constituted a valid reason for dismissal;
  • the positive test result was reliable and demonstrated that the policy had been breached with the likelihood that Mr Clayton had consumed cannabis within the few hours before he attended at work;
  • there was nothing in the induction training that excused the breach;
  • Mr Clayton had not been open and honest about the timing of his consumption of cannabis.
From the Commissioner …
Commissioner Hampton found that as a result of attending Coles’ induction training, Mr Clayton would reasonably have understood that no team member employed at the Coles EPDC was to have any alcohol or illicit drugs present in their system while working, and that a positive test result would, or at least was likely to, lead to dismissal.
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Additionally, the Commissioner also found that Mr Clayton - and other Coles EPDC workers - were advised that as an indicative guide, the window of detection for cannabis when subject to oral testing was between three and six hours after consumption. Mr Clayton was also advised that it was his obligation to attend work free from drugs, and if in doubt, not to attend at all. This was reinforced in the D&A policy.
“There is a dispute about when Mr Clayton consumed cannabis, and potentially how much he consumed,” Commissioner Hampton said. “This dispute has potential implications as to whether Mr Clayton knowingly or recklessly breached the D&A policy, given the information provided to him by Coles about the window of detection.”
Coles contended that Mr Clayton must have consumed cannabis much closer to his attendance at work and relied on the results of the laboratory testing and the evidence of its witness Dr McCartney’s opinion was that Mr Clayton’s relatively high reading was indicative of recent use (being less than eight hours prior to the testing) and was most likely indicative of consumption between one and three hours prior to his shift.
Commissioner Hampton said: “Having considered all of the circumstances in light of the evidence and the relevant principles to be applied, I find on the balance of probabilities that Mr Clayton consumed a significant amount of cannabis during the morning of 25 January 2016 before attending his shift.
“If Mr Clayton had not misled Coles about the actual timing of his consumption of cannabis, and could more legitimately rely upon the indicative window of detection as part of the mitigating circumstances, I would have been inclined to the view that the absence of notice, or pay in lieu, would be a factor strongly supporting a finding that the dismissal was harsh,” he said.
“However, in this case, whilst the absence of notice is a factor, it is not a decisive one.”
Commissioner Hampton said the situation now facing Mr Clayton was “regrettable” but he was not persuaded that Mr Clayton’s dismissal was harsh, unjust or unreasonable.
In your workplace …
Drugs and alcohol in the workplace is an issue facing many employers. Having robust and fully comprehensive drug and alcohol policies and procedures in place, as Coles did, will help protect your business from penalty should workers breach them and challenge your disciplinary actions. Ensuring your workers understand your policies and procedures - and acknowledge them - is also paramount to your defence.
But, ultimately, your policies and procedures should be designed to keep your workers safe by encouraging them not to abuse alcohol or drugs or put others at risk by attending the workplace under their influence.
Chapter D4 of the Portner Press Health & Safety Handbook, written in plain English by the experts at Holding Redlich lawyers, will guide you step-by-step through the process of creating your own documents, or reviewing the ones you have. With its downloadable and editable documents, hints and tips, you can’t go wrong.
Order your copy today on an obligation-free trial. What do you have to lose?
Keep up the good work,

Jeff Salton signature
Jeff Salton
Editor, Health & Safety Bulletin

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