This passage from an unfair dismissal case deals with the legal issues which apply when determining whether a breach of an employer’s drug and alcohol policies can be characterized as “serious misconduct”.
“[197] There have been a range of views expressed in decisions of this Commission as to whether breach of an employer’s drug and alcohol policy may be characterised as serious misconduct. In Hancock and Gauci, which are referred to earlier, the Commission agreed with DP World that the respective applicants had engaged in serious misconduct and in each case referred to the applicant as testing in the high range which was regarded as serious misconduct under the AOD Policy. In addition, in Gauci, the applicant engaged in two breaches of the AOD Policy. In Toms,122 the Full Bench agreed with the employer that the applicant’s breach of the drug and alcohol policy was serious misconduct. In Owen Sharp v BCS Infrastructure Support Pty Limited (Sharp),123 the Full Bench said that it was open to Vice President Catanzariti to find at first instance that the applicant’s breach of the employer’s drug and alcohol policy was serious misconduct. However, the Full Bench in that case then went on to make the following observations in relation to serious misconduct:
[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd. Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:
“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, whereMs McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).”124
(citations omitted)
[198] In Goodsell, the employer regarded the applicant’s conduct in failing a drug test as serious misconduct, but this characterisation was not specifically examined by Deputy President Easton or on appeal. In Gary Hilder v Sydney Trains,125 the Commission disagreed with the employer’s characterisation of a breach of its drug and alcohol policy as serious misconduct and this finding was not overturned on appeal.126
[199] I note that not every breach of the AOD Policy is regarded as serious misconduct under the Policy. This is understandable as the Policy deals with a range of conduct which varies in degrees of seriousness. For example, the most serious conduct it deals with is conduct of a criminal nature such as the use and consumption of, possession of, storage or selling, supply, cultivation or manufacture of illicit drugs at work. Such conduct would obviously amount to serious misconduct.
[200] The AOD Policy provides that breaches of the Policy ‘may’ be considered serious misconduct which may result in instant dismissal, in particular, where there is a ‘high range’ level detected or where there is a second breach. This gives some indication of the type of conduct which DP World regards as serious misconduct. The effect of the AOD Policy is that a single breach may be considered misconduct, but not serious misconduct. Further, a high range level may be considered serious misconduct but not a level which is lower than high range.
[201] Earlier in this decision I have indicated that the fact that a ‘high range’ level of an inactive metabolite does not increase a person’s risk of impairment is relevant to the objective seriousness of the matter. I therefore do not accept DP World’s submission that Mr Witherden’s conduct was serious misconduct on the basis that a high range of inactive metabolites was detected. What remains to be considered is whether Mr Witherden’s breach of the AOD Policy, regardless of the ‘range’ detected, amounted to serious misconduct. I do accept that Mr Witherden worked in a high risk environment, that the AOD Policy is one of the strategies that DP World has adopted to minimise the risk of injury or death or damage to property which could be caused by a person impaired by alcohol or other drugs and that a breach of the AOD Policy is a serious matter. Applying the reasoning of the Full Bench in Sharp, I do not believe that I am required to make a finding about whether Mr Witherden’s breach of the AOD Policy amounted to serious misconduct. I record that I regard Mr Witherden’s conduct as a serious matter and one which weighs in favour of a finding that the dismissal was not unfair.”
Witherden v Dp World Sydney Limited [2025] FWC 294 delivered 3 February 2025 per Wright DP