TERMINATION OF EMPLOYMENT – misconduct – s. 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant involved in forklift incident with another employee – no damage to persons or property and applicant not at fault – applicant (and others) subsequently underwent on-site oral fluid drug test – applicant returned a non-negative result for cannabinoids – further testing indicated applicant’s exact positive reading – applicant’s employment terminated without notice on basis of breach of Drug & Alcohol policy (D&A policy) – applicant contended dismissal unfair because not wilful or deliberate breach of policy – he was advised during induction he should not smoke marijuana within three to six hours before commencement of his shift and did not do so – reasonably believed he complied with D&A policy – respondent submitted positive test result showed applicant likely consumed cannabis within the few hours before he attended at work and perhaps during break in his shift on the date of incident – applicant not open and honest about timing of his consumption – both parties provided and relied on numerous witness statements and expert reports – Commission took into account Briginshaw in consideration of disputed evidence and findings in matter – Commission found on balance of probabilities applicant consumed a significant amount of cannabis during the morning before attending his shift – given nature of the workplace Commission found it reasonable for respondent to have a D&A policy of the kind implemented and that it was important to be consistently applied – this was due to nature of workplace, risks associated with employees potentially working under influence of alcohol or illicit drugs, and the absence of an appropriate objective test for impairment – Commission satisfied a valid reason existed for applicant’s dismissal as he was in breach of D&A policy and was well aware of importance of not being in breach of D&A policy – also apparent applicant not honest with respondent during meeting – Commission satisfied applicant’s dismissal was not harsh, unjust or unreasonable – application dismissed. Clayton v Coles Group Supply Chain P/L
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