Worker fired for refusal to take random drug and alcohol test

An application from a former Mondelez Australia employee, alleging he was unfairly dismissed after he refused to undergo a random drug and alcohol test, has failed.

A former employee of Mondelez Australia, who worked approximately seven years at a factory in Claremont that produces Cadbury chocolates, was dismissed from his long-time employer for refusing to undergo a drug test.

When the employee showed up to work on 12 October 2023, he was requested to undergo a random alcohol and drug test at 7:00am that morning. As the employee described it, “panic” set in, which resulted in the worker sending his supervisor the following text message:

“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.”

The evidence presented by the employee was that, on the evening of 11 October 2023, he smoked marijuana, with his reasoning being he “… smoked a joint of marijuana to help [him] sleep”. He attended work the following day and was selected to participate in the company’s random drug test.

The employee was terminated from his employment on 1 December 2023 after being suspended with pay. The reasons for the termination of employment were cited as: “A failure to follow a reasonable management direction, a breach of Mondelez Drug and Alcohol Safe Workplace Policy, as well as breach of the Work Health and Safety Act 2001.”

Mondelez has a zero-tolerance approach to drugs and alcohol at the workplace. Because of the dangerous nature of some of the equipment that is used throughout the factory, any misalliances with the drug and alcohol policy could have serious ramifications for the safety of employees, and the product.

Employee’s knowledge of the drug and alcohol policy

The former employee originally contested that he participated in the October 2021 training, which was based on educating employees about the drug and alcohol policy, among other company protocols. The former employee claimed he was not present for this training.

However, after cross-examination and evidence being brought forward that showed his signature and gate access on the very day that the training took place, the employee rescinded his claims. Moreover, it was then deemed that the former employee “was not a truthful witness” and that his evidence was “often inconsistent and self-serving”.

In any case, the former employee admitted to having an understanding of the drug and alcohol policy and being interviewed on the fact:

“In your own words, can you tell me about your understanding of the Drug and Alcohol Safe Workplace Policy?” – “You can’t be on site under the influence.”

Therefore, the employee was aware of the policy, why it existed, and the potential consequences that could arise if the policy is not adhered to.

Refusal of the test

Commissioner Tim Lee, who oversaw the case, believed the only honest reason for the former employee refusing to take the randomised test could be found in his original text message to his supervisor.

First, in the message, the employee was not asking for permission to leave the premises, instead he was announcing it and simply informing his supervisor of the fact. And secondly, he left the premises because he was certain that he would fail the drug test.

The former employee, however, goes on to claim through his evidence that he didn’t take the test because he was sceptical about the confidentiality of the results, fearing that a data breach was imminent, thus alerting the rest of his colleagues, and perhaps his family members of his drug use.

His evidence was deemed as “not plausible” as he didn’t bring it up until after the fact. If the potential data breach was the main reason for not undertaking the test, then it should’ve been brought up in his original message to his supervisor. Instead, he said he “had a few things I shouldn’t have had last night” as his reason for not doing the test.

For those reasons, Lee did not accept the privacy concerns as a legitimate reason to skip the drug and alcohol test.

Upon being cross-examined about his usage of marijuana and the regularity of it, the employee struggled to form a cohesive answer. Lee found his evidence to be inconsistent, as the former employee said he used it to de-stress from family issues, to help him sleep, and then, on occasions, purely recreationally.

However, the former employee did state:

“I would like to acknowledge that I was a recreational drug user, but with the advent of random testing onsite, I made a conscious effort to reduce my intake to ensure compliance to the Drug and Alcohol Policy. I have been dealing with issues and momentarily lapsed and slipped back into my old ways, but I am demonstrating that I can reform and continue to be an excellent worker following the Mondelez values.”

Still, Lee said: “This evidence … like much of his evidence was inconsistent and most unsatisfactory.”

Dismissal outcome

When considering whether or not the dismissal was “harsh, unjust or unreasonable”, Lee concluded that “there are valid reasons for the dismissal, and this weighs against a finding of unfairness”.

“The [former employee] has engaged in serious misconduct. This weighs significantly against a finding that the dismissal was unfair. The action of the [former employee] was wilful and deliberate.

“Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the [former employee] was unfairly dismissed within the meaning of the act. The [former employee’s] application is therefore dismissed,” he said.