Zero-tolerance drug approach "commendable" but flawed

The 56-year-old worker, based in Narrandera, NSW and an area supervisor with Downer EDI Works Pty Ltd, had worked for the company for 27 years and had an unblemished disciplinary record.

He smoked part of a cannabis joint while at a party at his house on a Friday in August 2025 and, aware of Downer's strict adherence to its zero-level drug and alcohol policy, he purchased a test kit on the Sunday evening.

The home test showed a negative result, but when he did a urine test on-site on the following Monday, the result was "non-negative". He was then stood down pending the result of a laboratory test.

The laboratory test was also non-negative albeit at a low level of 41 micrograms per litre.

The worker was sacked and applied for an unfair dismissal remedy.

FWC Deputy President Tony Slevin noted that Downer's onsite tests had a cut-off at 50 micrograms per litre, while the laboratory cut-off point was much lower at 15 micrograms. This gave rise to an anomaly, he said.

"Curiously the cut-off level in the procedure for confirmatory tests is 15 [micrograms] which gave rise to what appears to be an anomalous situation where [the worker] had concentrations of metabolites that were acceptable under on-site testing but unacceptable when a laboratory test is done," the Deputy President said.

"It had the effect here of the procedure continuing and leading to a positive result when strictly speaking the procedure should have ended with the on-site test giving a negative result," he said.

He agreed with the worker that he should have been offered a second test in the workplace and noted Downer managers had referred to this fact in considering whether to dismiss him.

Ultimately, management opted to dismiss the worker on the grounds he had broken one of the "cardinal" rules of its health and safety policy by attending a worksite with detectable levels of cannabis in his system.

However, Deputy President Slevin said the worker hadn't knowingly broken the cardinal rule because his home test had shown a negative result and he wasn’t impaired when he attended work.

He noted that Downer's workplace policy offered a range of other sanctions besides dismissal including warnings, counselling and performance improvement programs.

He said the move to immediate dismissal failed to follow Downer's own policy and was a disproportionate response to the long-term worker's low-level test result.

He added that while drug and alcohol policies play an important role in workplace safety, employers need to give adequate consideration to workers' individual situations and any mitigating circumstances.

In this case the worker had a 27-year unblemished disciplinary record with the company and had risen to the position of area manager, he said.

"He has made a significant contribution to the company during that time having received awards for his performance including in regard to safety."

The Deputy President went on to reject Downer's suggestion that reinstating the worker would be contrary to its consistent application of its zero-tolerance approach towards detectable levels of illegal drugs.

"I acknowledge Downer's focus on safety in the workplace and the strong emphasis on maintaining a drug free workplace. It is commendable and essential in the industry in which it operates," he said.

"However, the inflexible approach it has taken in [the worker's] circumstances to the application of that approach is an important factor in the dismissal being unfair in his particular circumstances."

The Deputy President reinstated the worker, with back wages and an order for continuity of service.

Brew v Downer EDI Works Pty Ltd [2026] FWC 955 (23 March 2026)