By Denise Cullen -
When mine worker Jarrod Eather was fired after testing positive to THC (cannabis), he lodged a claim with the Fair Work Commission (FWC) for reinstatement and lost remuneration. His employer did not have a zero tolerance policy. Rather, company policy required that employees who tested positive for drugs be stood down pending a re-test three weeks later, at which time they needed to be under the company cut-off, or face disciplinary consequences.
Eather spent those three weeks running and guzzling water in an attempt to “sweat out” the drug, according to Eather v Whitehaven Coal Limited T/A Narrabri Coal Operations (2018) FWC 250. Yet, in the second test, he registered 18 micrograms of cannabis metabolite per litre of urine, just over the company’s 15 micrograms cut-off, and was summarily dismissed. Eather claimed the company’s OHS representative had told him he just needed to pass an onsite screener, which could only detect concentrations of 50 micrograms or more, and was thus less sensitive than the laboratory test.
However, the FWC took a dim view of Eather’s argument, noting that in playing “Russian Roulette” with testing standards, he had breached company policy and exposed himself and colleagues to safety risks.
“If an employee is prepared to take this gamble, then they cannot complain about the consequences under the disciplinary process,” FWC Deputy President Sams said.
