A dump truck driver dismissed after THC was detected in his system on two consecutive days has been awarded $37,222 following a successful unfair dismissal case.
Maxwell Parks, an employee at the Boundary Hill coal mine near Biloela, was terminated by the labor hire firm WorkPac in February due to positive saliva tests at the mine indicating THC presence.
However, Mr. Parks stated that he followed protocol by using a saliva testing kit provided by the mine’s operator, Batchfire Resources, and both tests showed negative results in the mornings before work.
He explained to the Fair Work Commission that he had smoked half a joint of his friend’s medicinal marijuana on January 25 to alleviate anxiety resulting from a family issue, believing he still adhered to company regulations.
Fair Work Commissioner Chris Simpson sided with Mr. Parks, deeming the dismissal harsh and unjust, and noted the efforts by Mr. Parks, such as conducting self-tests before work and receiving all negative outcomes.
Commissioner Simpson strongly criticized WorkPac’s procedure in handling the situation, indicating that although there was a valid cause for dismissal, the investigation process was seriously flawed.
He said the probe failed to consider his spotless work record, personal hardships, and the financial blow of losing his income.
‘Whilst I have concluded that WorkPac had a valid reason for dismissal, the investigation conducted by WorkPac did not take into account all of the circumstances,’ he said.
Maxwell Parks operated dump trucks at the Queensland coal mine
‘I have concluded the decision to terminate Parks was harsh given all of the circumstances, including Parks taking the proactive step of self-testing before attending for work as he had been educated to do and returning negative tests, deficiencies in how the testing was undertaken, his unblemished work history, his personal circumstances, and the financial impact on him.’
In his evidence, Mr Parks said he returned negative self‑test results before his shifts on January 26 and 27, yet later lab tests flagged trace amounts of THC.
He said he used a saliva-based self-testing kit provided by Batchfire.
On January 26, he arrived for his shift, swiped in at 6.30am, and thought all was well until he was called in for a random drug test triggered by his housemate testing positive for marijuana.
His first saliva test came back non-negative, so he was retested and got a negative result.
But uncertainty reigned, so the supervisor sent him home from the site without pay.
Mr Parks was requested to attend work the following day.
Believing he was in the clear, he took another negative self-test at home and turned up to work, only to be called back inside to be tested again.
The FWC found that even though the labour hire employer had a valid reason to sack him, it was unfair on multiple fronts
Despite the fact he and the supervisor both signed off on the negative result the previous day, Batchfire called him back and told Mr Parks the test had changed to non-negative.
He provided a further sample for laboratory testing, which returned a non-negative result, prompting his dismissal.
Before his sacking by WorkPac, Mr Parks’ hourly pay was $70.90 and he worked 175 hours per month, equating to more than $12,000.
Mr Parks did not ask the FWC to order WorkPac to give him his job back because the work relationship was ‘irrevocably broken’.
Commissioner Simpson found that although the laboratory results provided a valid reason to dismiss the operator, the circumstances rendered it unfair.
He said he had no doubt the worker was genuinely shocked and surprised when he returned non-negative tests at work.
‘I have no doubt that had the self-tests provided to him by Batchfire returned a non-negative result, he would not have attempted to work, and would have accessed personal leave as the Batchfire policy contemplates,’ he said.
