A heavy vehicle driver has been awarded more than $31,000 in compensation after Fair Work Commissioner Trevor Clarke ruled his employer sacked him unfairly following a positive roadside drug test — finding there was no evidence he was actually impaired at work.
Sleepeezee Bedding Australia summarily dismissed the truck driver about a week after he was stopped by police during what appeared to be random roadside testing on a Wednesday morning in May last year. His saliva sample returned a positive result for an unnamed prohibited substance, and he was issued a 24-hour driving prohibition notice.
While waiting by the side of the road, the worker texted the company’s national operations manager to explain the situation, admitting he had smoked a joint of cannabis on the weekend — more than 24 hours before his first shift of the week on Monday evening. The employer dismissed him for breaching its drug and alcohol policy by allegedly working under the influence, contending his substance use created a serious and imminent risk to other road users. At the time of the dismissal, confirmatory laboratory results had not yet been returned.
Commissioner Clarke rejected the employer’s case, finding it had no valid reason for termination. He said a serious and imminent risk to the health or safety of other road users could not be established without evidence the worker was in fact impaired — and that the only evidence Sleepeezee had was an oral fluid test indicating one or more illicit drugs might be present.
The Commissioner also found the company’s drug and alcohol policy had limited scope, prohibiting workers from being “under the influence” of illicit substances at work — a threshold the employer failed to demonstrate had been met. “Perhaps some expert evidence might have been sought on this issue, but it was not,” he said.
Clarke noted the employer could have avoided the situation entirely through alternative measures, including policy training, a formal warning and a requirement to undergo a testing program. He awarded the worker $31,304 in lost wages plus superannuation.
