A factory worker did not face unfair dismissal for leaving work to avoid a random drug test. The Fair Work Commission (FWC) determined that the worker’s ‘wilful and deliberate’ serious misconduct outweighed his lengthy, unblemished service record. This case highlights the importance of having a robust drug and alcohol policy, particularly in high-risk work environments.

What happened?

Brayden Stacey worked as a Confectioner for Mondelez Australia Pty Ltd (Mondelez).

On 12 October 2023, Mondelez informed Mr Stacey that they had selected him for random drug and alcohol testing according to the Policy.

Mr Stacey panicked and sent his manager a text message stating (emphasis added): ‘gonna have to go home sick, hate to do it. But had a few things I shouldn’t have last night. I know it’ll come up on the test so [I’ll] be told to go home either way. I feel fine and capable enough to do my job though, no issues there just know it’ll come back positive.’ Mr Stacey’s manager simply replied by text message with ‘Ok.’

Mr Stacey left work. Later that day, Mondelez sent him an email confirming his suspension with pay effective immediately and requiring him to respond to allegations of serious misconduct. They attached a copy of the Drug and Alcohol Testing Policy and Procedure (Policy) to the email.

During the disciplinary process, Mondelez requested Mr Stacey to ‘show cause’ why they should not terminate his employment for serious misconduct. He argued that he used cannabis recreationally, had an unblemished disciplinary record, faced mitigating factors (illness in his family), and was not ‘impaired’ while working.

On 1 December 2023, Mondelez terminated Mr Stacey’s employment. They cited his failure to follow a reasonable management direction (to participate in a random drug test), a breach of the Policy, and a breach of his obligations under workplace health and safety laws.

Mr Stacey lodged an unfair dismissal claim with the FWC.

Decision of the FWC

The FWC observed that:

• sound reasons existed for introducing the Policy, associated with workplace safety. Therefore, requiring Mr Stacey to undertake the random drug test was reasonable

• although Mr Stacey claimed he was not impaired, this was his opinion and could not be proven because Mr Stacey refused the drug test

• Mr Stacey understood the Policy requirements, as he had received training upon starting employment and on at least two occasions during his employment

• by responding ‘ok’ to Mr Stacey’s text message, his manager did not give him permission to avoid the random drug test. Rather, his manager simply acknowledged that he was going home

• Mr Stacey raised concerns about the privacy of test results for the first time during the hearing, and those concerns were not legitimately held.

Overall, the FWC found that Mr Stacey engaged in serious misconduct. He refused the test because he knew or assumed he would fail it. In doing so, Mr Stacey failed to follow a reasonable and lawful direction.

Mr Stacey’s serious misconduct outweighed his length of service and unblemished disciplinary history.

The FWC dismissed the unfair dismissal application.

Takeaways for employers

If you want to implement a Drug and Alcohol Policy in your business, you should:

• ensure that the policy is reasonable. For example, identify the workplace safety requirements that necessitate a drug and alcohol policy

• provide training for new employees, and conduct regular refresher training. Ensure employees understand the consequences of breaching the policy

• include a clear procedure for testing, outlining what will happen if an employee refuses to be tested

• apply the testing processes and outcomes consistently.

We can assist you in drafting and implementing a Drug & Alcohol Policy for your business. For further information, contact kate.simpson@employsafelegal.com.au.

Read the full case – Brayden Stacey v Mondelez Australia Pty Ltd 2024 [FWC] 1701.

The information in this update is a guide only. Seek professional advice before applying any information to specific circumstances. EmploySafe Legal does not accept liability for any errors contained in this update.

Kate Simpson 
Managing Director – Employment & Safety Lawyer 
+61 420 972 497 
kate.simpson@employsafelegal.com.au