The recent case of Goodsell -v- Sydney Trains is a recent Fair Work Commission case that examined the fairness of Sydney Trains’ decision to terminate Mr Goodsell’s employment following a positive drug test for cocaine. The case is important for employment lawyers and HR professionals as it considers the applicability of “zero tolerance” policies and the overriding need for procedural fairness.
Summary
Mr Goodsell returned to his employment with Sydney Trains after a period of leave. Whilst on leave, he consumed some cocaine.
On his return to his employment, Sydney Trains required Mr Goodsell to submit to a drug test. The test returned a positive for cocaine metabolites. On the basis of the positive test, he was issued a show-cause notice.
Mr Goodsell’s Evidence
Mr Goodsell was a long-time employee of Sydney Trains, with 26 years of service. He held a position of responsibility and trust as a Work Group Leader. His duties involved ensuring safety protocols were followed, coordinating work scopes, and managing staff. He maintained an excellent work record and had no history of drug use or performance issues.
Mr Goodsell took some annual leave. Whilst on leave, about 4 days before he was due to return to work, he had a night out with friends, during which he consumed cocaine, Mr Goodsell returned to work believing the drug would be out of his system by then. However, he tested positive for cocaine metabolites during a random drug test on his first day back at work. Despite feeling normal and not impaired, further testing confirmed the presence of benzoylecgonine, a cocaine metabolite, in his system.
Mr Goodsell expressed deep remorse for his lapse in judgment, emphasising that it was a one-time mistake and not reflective of his usual behaviour. He pleaded for leniency, citing his honesty throughout the investigation and willingness to participate in rehabilitation programs to maintain his employment.
During cross-examination, Mr. Goodsell admitted to not researching how long cocaine metabolites stay in the body, suggesting his belief that the drug would have cleared from his system was speculative.
Expert and Medical Evidence
Mr Goodsell relied upon expert evidence from Professor Robert Weatherby, an Adjunct Professor at Southern Cross University with expertise in Pharmacology and Drugs in Sport. Professor Weatherby explained that cocaine has a short half-life in the body, and its effects typically last up to 90 minutes. He emphasised that while active, cocaine can impair cognitive functioning and reasoning but noted that its metabolite, benzoylecgonine, is pharmacologically inactive and has no impairing effects. Professor Weatherby’s analysis suggested that the low concentration of benzoylecgonine found in Mr Goodsell’s system was consistent with his account of events and indicated no impairment.
In response, Sydney Trains presented evidence from Dr Armand Casolin, their Chief Health Officer, and Dr John Lewis, a Consultant Toxicologist.
Dr Casolin explained Sydney Trains’ drug testing procedures, which focus on detecting the presence of drugs rather than impairment. Dr Lewis, citing the Australian Standard, highlighted that cocaine metabolites in urine indicate recent consumption and cannot be correlated with impairment. He questioned the evidence of Mr Goodsell and argued that, based on established excretion rates, no benzoylecgonine should have been present in Mr Goodsell’s urine four days after consumption.
During cross-examination, Dr Lewis clarified that benzoylecgonine is pharmacologically inactive and disagreed with the assumption that its concentration in Mr Goodsell’s urine could be linked to any hangover effect. He also emphasised that the Australian Standard does not differentiate between types of cocaine users and based his opinion on excretion rates on a study that is more than 20 years old.
Sydney Trains’ Drugs and Alcohol Policy
The policy’s stated aims included to ensure a safe working environment by promoting a drug and alcohol-free workplace. The policy includes provisions for drug and alcohol testing, rehabilitation programs, and education on related issues. It emphasises the importance of maintaining sobriety while at work and outlines the consequences for violating the policy.
Additionally, it committed Sydney Trains to provide support for employees struggling with substance abuse, including access to rehabilitation programs.
Mr Goodsell’s Submission
In the closing submissions on behalf of Mr. Goodsell, Counsel acknowledged that a breach of Sydney Trains’ Drugs and Alcohol (D&A) Policy could constitute a valid reason for dismissal. He conceded there existed an obligation of Sydney Trains, under the Rail Safety National Law (NSW), to manage risks associated with drug and alcohol use. However, he argued that having traces of the cocaine metabolite benzoylecgonine in his system, without impairment, did not justify dismissal.
Counsel contended that Sydney Trains misinterpreted the Full Bench decision in Sydney Trains v Hilder, suggesting that a non-negative drug test result doesn’t automatically warrant dismissal. He argued that Mr. Goodsell’s case differs substantially from previous cases involving cannabis use and emphasised various points:
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Cocaine’s direct impairing effect occurs when it is active in the body, which typically lasts up to 90 minutes.
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The presence of benzoylecgonine does not necessarily indicate impairment or habitual use.
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Mr. Goodsell’s breach of the D&A Policy was not deliberate or reckless, and he believed he was complying with the policy.
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Sydney Trains failed to adequately explain its policies to employees, as highlighted in the Hilder case.
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Dismissal was disproportionate, given Mr. Goodsell’s exemplary employment record and remorse.
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Procedural fairness was lacking in the dismissal process, including inadequate consideration and a closed-minded approach by Sydney Trains.
Furthermore, Mr Goodsell argued that Sydney Trains’ testing regime is flawed, as it cannot accurately detect contemporaneous breaches or impairment. He asserted that the policy effectively prohibits employees from consuming drugs or alcohol outside of work in a manner that results in residual metabolites above a certain level when they attend work, even if they are not impaired.
Overall, Mr Goodsell’s case challenges the automatic dismissal approach of Sydney Trains for breaches of the D&A Policy, emphasising the need for proportionality, procedural fairness, and a nuanced understanding of drug testing results and their implications for workplace safety.
Sydney Trains Submission
Sydney Trains argued that Mr Goodsell’s case closely mirrors the circumstances of Hilder, where a breach of the Drugs and Alcohol (D&A) Policy constituted a valid reason for dismissal. They highlighted several parallels between the cases, including the breach of a significant safety policy, awareness of the policy, and the nature of the duties requiring safety-related functions.
Sydney Trains contended that the variability in interpreting drug test results and the inability to determine impairment scientifically justified their approach of testing for the presence of drugs rather than impairment.
Sydney Trains challenged Mr Goodsell’s assertion of making a reasonable mistake, emphasising that engaging in illegal behaviour without considering the consequences does not qualify as a reasonable mistake. Sydney Trains also disputed any ambiguity in the D&A Policy, pointing out the absence of evidence from Mr Goodsell regarding confusion or uncertainty about the policy’s requirements.
Sydney Trains further argued that the margin by which the drug concentration exceeded the testing threshold was immaterial, as any non-negative result constitutes a breach of a serious policy. They emphasised the lack of scientific evidence for determining impairment from drug test results. They asserted that Mr Goodsell’s intentionality in the breach is irrelevant to establishing a valid reason for dismissal.
Additionally, Sydney Trains asserted that Mr Goodsell was afforded procedural fairness, and there was no evidence to suggest otherwise. They maintained that Mr Goodsell did not express any confusion about the D&A Policy before his dismissal. Finally, they suggested that intentionality might be addressed under specific provisions of the law governing unfair dismissal cases.
Consideration
The document discusses three significant Full Bench authorities on workplace drug and alcohol testing: Harbour City Ferries v Toms, Sharp v BCS Infrastructure, and Sydney Trains v Hilder. Each case involves an employee testing positive for drugs and subsequently being dismissed from their position. The document examines the reasoning and decisions of each case, focusing on factors such as the validity of the dismissal, the presence of impairment, and the relevance of testing standards.
In the case of Harbour City Ferries v Toms, Mr Toms was dismissed for testing positive for cannabis, despite no evidence of impairment. The Full Bench upheld the dismissal, emphasising the importance of policy compliance and public safety.
Sharp v BCS Infrastructure involved a similar scenario, with Mr Sharp testing positive for cannabinoids. The Full Bench affirmed the validity of the dismissal, noting the limitations in establishing impairment and the importance of safety in safety-sensitive roles.
In Sydney Trains v Hilder, Mr Hilder tested positive for cannabis metabolites after consuming a marijuana cigarette during personal time. Despite no evidence of impairment at work, he was dismissed. The Full Bench found the dismissal valid due to the breach of the company’s drug and alcohol policy.
The document also discusses testing standards and readings, emphasising that testing for drug use does not necessarily indicate impairment. The Australian Standard sets protocols for testing, focusing on the presence or absence of drugs rather than impairment.
Furthermore, the document addresses the connection between drug use and impairment, highlighting the challenge for employers in testing for impairment. It discusses the relevance of out-of-hours conduct to employment and the importance of considering the risk of impairment in safety-critical roles.
Ultimately, the document concludes that Mr. Goodsell’s dismissal was unjust, as there was no evidence of impairment at work and the positive drug test occurred during approved leave. It examines the factors outlined in Section 387 of the Fair Work Act in determining the fairness of the dismissal, including the validity of the reason, notification, opportunity to respond, and impact on the enterprise.
Summary
The case involves Mr Goodsell’s dismissal from Sydney Trains due to a positive drug test. While acknowledging the validity of the dismissal due to a breach of the company’s Drug and Alcohol (D&A) Policy, the Fair Work Commission (FWC) found several procedural flaws rendering the dismissal unfair.
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Validity of Dismissal: The breach of the D&A Policy was considered a valid reason for dismissal, given the safety-critical nature of Sydney Trains’ operation.
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Notification and Opportunity to Respond: Mr Goodsell was properly notified of the reason for his dismissal and given an opportunity to respond.
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Opportunity to Respond: Although Mr Goodsell was given a chance to respond, the Commission found Sydney Trains’ process to be procedurally unfair due to a lack of consideration of his particular circumstances.
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Impact of Enterprise Size and HR Expertise: The size of Sydney Trains’ enterprise and its HR expertise did not impact the dismissal procedures.
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Other Relevant Matters:
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Mr Goodsell’s lengthy and unblemished employment history.
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Cooperation, remorse, and acceptance of responsibility for the breach.
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Lack of risk of impairment during work hours.
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Sydney Trains’ apparent zero-tolerance approach and failure to consider alternatives to dismissal.
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Inadequate clarity in the information provided to employees about the D&A Policy.
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Commission’s Decision
Despite a valid reason for dismissal, the FWC deemed Mr Goodsell’s dismissal harsh, unjust, and unreasonable due to procedural flaws and mitigating factors. Therefore, it was considered an unfair dismissal.
Remedy – Reinstatement
The FWC ordered Mr Goodsell’s reinstatement to his former position with compensation for lost pay. The compensation was reduced by 20% due to Mr Goodsell’s failed drug test. The reinstatement order aimed to maintain workplace harmony and fairness while considering the circumstances of the case.
