Unfair dismissal and drug use by employees

Employers take a hard line on dismissing employees for drug use during work hours. Although it is recommended that employers have in place and follow zero drug use policies in order to prevent unfair dismissal claims, the Fair Work Commission has upheld terminations of employment even where no such policies existed, and even where employees have been denied procedural fairness.

This is usually due to the serious nature of the employee conduct.

Procedural fairness, a stipulation of unlawful termination laws, entails putting any allegations or accusations of misconduct to an employee before their employment is terminated, and allowing them to respond to those allegations.

In a recent case, Albert v Alice Springs Town Council, it was held that a council worker was fairly dismissed despite the fact that his employer did not give him the opportunity to respond to drug test results. The worker was involved in a car accident during work hours while he was driving a council truck. The truck was hit by someone who failed to give way at an intersection. After the accident the worker was required to undergo a urine test which found THC levels in his system that were 73 times higher than the council’s cut-off levels. He was dismissed summarily as the council argued that the extremely high levels of THC meant that he posed a danger to himself, the public and other employees.

The employee made a claim for unfair dismissal on the basis that he had not been allowed to see the results of his drug test, and had not been given the relevant paperwork when taking the urine test. The Commission held that even though this had not been done, and the employee had in fact been denied procedural fairness, the termination of his employment was still valid. This was because of the seriousness of his conduct, and the fact that safety was critical in his job.

The Commission found that even if the worker was given procedural fairness, the outcome would have been the same because of the extremely high levels of THC. Therefore, his unfair dismissal claim failed.

While this is an example of where the employer was not required to provide procedural fairness, it is a rare example. The conduct would usually have to be very serious for this to happen, and it is recommended that employers always provide employees with procedural fairness as a matter of good practice, even where there has been serious misconduct by an employee.  This means putting allegations and evidence to employees, and giving them an adequate opportunity to respond to those allegations.

Employers should also have in place clear drug and alcohol policies which specify what will happen to employees if they return a positive test result.

Our unlawful termination lawyers Perthadvise that employees should know that when they engage in serious misconduct, especially relating to drug and alcohol use, employers can summarily dismiss them for serious misconduct, and in some rare cases such as the above, do this without affording them proper procedural fairness.

Extension of Time Granted for Filing In the Wrong Jurisdiction

On 10 October 2016, Mr Pritchard was terminated by his former employer, and on 24 November 2016, he made an application with the Fair Work Commission for unfair dismissal in accordance to section 394 of the Fair Work Act.

On 1 December 2016, the respondent raised an issue that the applicant made the Fair Work Commission application outside of the 21-day time period.  The issue before the Fair Work Commission was whether to grant the extension of time for Mr Pritchard’s application.

On 30 October 2016, Mr Pritchard filed an application with the WAIRC.  On 22 November 2016, the parties met at a conciliation conference where the matter did not settle.  On 24 November 2016, Mr Pritchard received advice from the Chamber of Commerce and Industry of Western Australia that he made an application to the wrong industrial body.  Thirty minutes later, after receiving this advice, Mr Pritchard filed an unfair dismissal claim with the Fair Work Commission.

The Fair Work Commission will grant an extension of time under Section 394 of the Fair Work Act if there are exceptional circumstances.  The Fair Work Commission made a finding that there were exceptional circumstances and the extension of time was granted for the following reasons:

  1. Mr Pritchard was unaware that his former employer was a constitutional corporation as there was no “Pty Ltd” at the end of the employer’s trading name, and Mr Pritchard thought the employer was trading as a trust.
  1. Mr Pritchard, being a layperson, was “not well-versed in industrial relations law”.
  1. Within minutes of getting advice from the CCIWA on 24 November 2016, Mr Pritchard promptly lodged an FWC unfair dismissal claim.
  1. There was no prejudice to the former employer.
  1. Mr Pritchard had credible explanation why the three days was out of time and the delay for filing out of time.
  1. Fairness was relevant to other persons in similar situations.

While statutory time frames are enforced strictly by courts and commissions, this case highlights that there is scope for an extension to be granted in exceptional circumstances.

It’s important to remember that establishing special circumstances is not easy to do. We find that most cases do not meet the criteria. The most common reason for someone filing late is that they were not aware of their rights. The courts and commission have said time and time again that this is not good enough reason to justify an extension of time. The legal position  is ignorance of the law is no excuse.

If you believe you have a claim but you are out-of-time, it’s best to contact an employment lawyer to obtain the best advice in relation to how to move forward.  Your claim may be in the category where an extension can be granted.




An employer has a duty of care to provide for its employees a safe and professional working environment.

In circumstances where a reasonable person could be reasonably offended, humiliated or intimidated by another person they are said to be sexually harassed when: (a) an unwelcome sexual advance, an unwelcome request for sexual favours; or (b) engages in other unwelcome conduct of a sexual nature (s28A, Sex Discrimination Act 1984 (Cth)).  It is unlawful for one person to sexually harass another (s 28B, Sex Discrimination Act 1984 (Cth)).

Examples of sexual harassment:
•    Looking at someone in way that makes them feel uncomfortable.
•    Making sexually explicit jokes.
•    Asking them for a date or sex after they already said no.
•    Asking person questions about their personal life and behaviour.
•    Brushing up against someone in a sexual way.
•    Sending them pornography.
•    Putting up sexually charged images at work in front everyone;
•    Sending the person sexually explicit photos or text messages.

(see Sex Discrimination Act 1984 (Cth)).

In the recent case of Ewin v Vergara [2013] FCA 1311 the respondent, a contractor engaged by Living and Leisure Australia Ltd (LLA), sexually harassed the applicant, an employee of LLA.  In May 2009 the respondent subjected the applicant to verbal sexual harassment.

For example, at the workplace the respondent propositioned the applicant for sex in explicit terms, proposed the applicant have an affair with him, and made sexually suggestive comments to the applicant.

Furthermore, on 14 May 2009 after both the respondent and applicant attended a work function at the LLA office, the respondent physically sexually harassed the applicant by sexual intercourse and assault.

The Federal Circuit Court made a finding that despite the fact that the applicant was an employee and the respondent was a contractor, “both employees working in the same business [LLA] and vis-à-vis each other capable of being regarded as fellow employees within the ordinary meaning of that phrase” [see para 19] and there was a “requisite nexus been provided by the fact that the LLA office was a place where both Mr Vergara and Ms Ewin worked” [41].  The respondent was fined $476,163.00 in damages.

What to Do

If you or someone at your workplace has been sexually harassed at the workplace it is important to notify your employer, union (if you are part of one) and the sexual harassment law allows you the right to lodge a complaint with the Australian Human Rights Commission (AHRC).

The person who you are making the complaint against has a right to respond tho your application with the AHRC.  The president of the AHRC will then review the complaint and schedule a conciliation conference for all parties to the complaint to attend by either telephone discussion or a face to face meeting.  The conciliation conference is a confidential, informal process that allows both complainant and respondent to discuss both sides of the story with the guidance of a conciliator.  The role of the conciliator is to ensure both sides are heard in a fair and just matter and that the dispute is resolved.  If the dispute cannot be resolved at the conciliation conference, the conciliator can suggest that further legal action take place.

If the dispute is not resolved at the conciliation conference the complainant has a right, within 6 years of the alleged sexual harassment, to make an application to the Federal Circuit Court of Australia (see s 544, Fair Work Act 2009 (Cth)).

If you have any questions, contact one of a sexual harassment lawyer from our office.

What Exactly is Unlawful Termination and How is it Different to Other Claims?


Some people confuse the unlawful termination with the general protections and the unfair dismissal laws. While the protections of each can overlap, there are distinct differences that people should be aware of if they intend to lodge a claim challenging a dismissal.

Unlawful termination protection applies to an employee who is not covered in the Federal law system. In Western Australia, people who don’t fall in the Federal law system include State Government workers, employees who work for a partnership, and employees who work for a sole trader. Employees who work for a company or the Federal Government fall under the Federal system and should file a general protections claim, not an unlawful termination claim.

The unlawful termination provisions essentially replicate the general protections provisions.

An employee will have the right to lodge an unlawful termination claim if their employment was terminated for a prohibited reason. The prohibited reasons include:

• If the employee is terminated because they took time from work due to an illness or injury.
• They had their employment terminated because they engaged in union activities or they became a member of a trade union.
• The employee did not wish to be a member of a trade union.
• The employee sought a position as an employee representative in some form; an example of this is if the employee wished to be the safety representative in the workplace.
• The employee makes a complaint against the employer arising from some breach of the law or is actively involved in such proceedings. An example would be if the employee makes a complaint to Work Safe for a breach of the safety regulations.
• If dismissal arises from any established discrimination grounds. In Australia, there are well-established laws which state that people are entitled to be protected from discrimination relating to their skin colour, ethnicity, gender, sexual preference, age, disability, marriage status, any responsibility they have to care for their family or children, pregnancy, religious beliefs, political persuasion, country of birth, and a person’s social class or background.
• If an employee takes time off work due to maternity leave or any other time off relating to caring for children.
• If the employee takes time off work to assist emergency volunteers, to assist in volunteer work, or to manage the activities of that organisation, provided the absence is reasonable taking into account all the circumstances.

Unlawful termination laws do not apply to contractors, employees who resigned ( if termination was not a result of the conduct of the employer), and to people who are employed as trainees for a specific period of time and were terminated at the end of their training arrangement.

The unlawful termination laws state there is a time limit of 21 days after the termination takes effect to lodge a claim with the Fair Work Commission. Exceptional circumstances are required to extend this time limit if a claim is filed out of time.

If you have any questions about the contents of this article, please contact us for a no-obligation discussion with one of our unlawful termination lawyers.