Reinstatement Order Highlights Challenges to Zero-Tolerance Drug Policies: Lessons from Witherden v DP World Sydney Limited

Case Overview

In the decision of Witherden v DP World Sydney Limited, delivered on 3 February 2025, the Fair Work Commission (FWC) examined an application for an unfair dismissal remedy filed by Lee Witherden. Employed as a stevedore for 25 years, Mr Witherden was summarily dismissed after testing positive for cocaine metabolites. The FWC found that, while Mr Witherden’s breach of DP World's drug and alcohol policy was a valid reason for dismissal, the decision to dismiss him was ultimately considered harsh and unreasonable, leading to Mr Witherden’s reinstatement.

Key Facts

Incident and Dismissal

After returning to work following a shoulder injury, Mr Witherden tested positive for cocaine metabolites during a random drug test.  He admitted to using cocaine 24 hours before his rostered shift to cope with mental health issues related to his injury.

DP World dismissed him for breaching their drug and alcohol policy, citing it as serious misconduct.

FWC Proceedings

Mr Witherden applied to the FWC for an unfair dismissal remedy.

The FWC considered evidence from expert witnesses about the effects of cocaine and the adequacy of DP World's drug and alcohol policy.

FWC Decision

The FWC acknowledged a valid reason for dismissal due to policy breach but found the dismissal harsh and unreasonable.

Critical factors considered included Mr Witherden's 25-year unblemished employment history, no evidence of actual impairment at work, the company’s failure to consider options other than dismissal, and the need for clearer policy guidance.

The FWC ordered Mr Witherden's reinstatement, emphasising the need for rehabilitation over punitive measures.

Key Takeaways for Businesses

1.     Clear and Comprehensive Policies:

• Develop comprehensive workplace policies, especially those related to drug and alcohol, with detailed definitions and consequential guidelines.

• Ensure policies inform employees about the detection of drug metabolites and the implications for fitness for work.

• Regular training and transparent communication about these policies are crucial for compliance.

  
  

2.     Consideration of Employee Circumstances:

• Evaluate individual employee circumstances prior to taking disciplinary actions.

• Factors like long service, unblemished records, and the presence of mitigating factors such as mental health issues should guide a fair and balanced approach.

  
  

3.     Rehabilitation vs. Punitive Actions:

• Recognise drug and alcohol dependencies as treatable conditions and consider offering rehabilitation options.

• Developing and implementing employee support plans and counselling services proactively to address underlying issues of substance use.

• Disciplinary actions should not be the default response; a supportive approach may be more beneficial in many cases.

  
  

4.     Flexibility in Disciplinary Actions:

• Maintain discretion and flexibility in disciplinary decisions, allowing for alternative measures such as rehabilitation.

• Policies should not mandate immediate dismissal for breaches without considering the context and possible remedies.

  
  

5.     Documentation and Process:

• Document all steps in the disciplinary process clearly, including employee responses and considerations of alternative actions.

• Ensure that decision-makers review all relevant information and evidence before making final decisions.

  
  

Conclusion

The Witherden v DP World Sydney Limited case underscores the importance of clear policies, fair consideration of employee circumstances, and the need for supportive measures over punitive actions in managing workplace drug and alcohol issues. By adopting a comprehensive and empathetic approach, businesses can foster a safer and more supportive work environment while mitigating risks associated with impairment.

For assistance and guidance, our team at Macroview Legal is ready to assist with any questions or concerns.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Readers should consult a legal professional for advice on specific legal matters.