When zero tolerance goes too far: Employee reinstated following failed drug test

It is widely accepted that workplaces, particularly those involving safety-critical roles that include operating heavy machinery or vehicles, will stipulate a strict zero-tolerance drug and alcohol policy.

However, the Fair Work Commission (FWC), in Mr Glenn Brew v Downer EDI Works Pty Ltd [2026] FWC 955 (Glenn v Downer), have clarified that an employee’s breach of a zero-tolerance drug and alcohol policy will not always justify dismissal.

Mr Glenn Brew v Downer EDI Works Pty Ltd [2026] FWC 955

Glenn v Downer concerned the ordered reinstatement of an employee following a non-negative drug test despite the employer’s termination of the employee being due to the existence of a zero-tolerance drug and alcohol policy.

Background

The Applicant, Mr Glenn Brew, worked as an Area Supervisor for the employer, Downer EDI Works Pty Ltd, for 27 years.  On Friday, 22 August 2025, the Applicant hosted a dinner at home with friends.  At the end of the dinner, the Applicant inhaled smoke from a cannabis cigarette.  The Applicant was due to work that Monday, so he took a urine self-testing kit for THC purchased from a local chemist on Sunday, 24 August 2025 which produced a negative result.

On that basis, he attended work on Monday, 25 August 2025 as scheduled.  That same day, the Applicant was drug tested at work and was told the result of the urine screening test was non-negative for THC requiring a confirmatory test to be done in a laboratory.  The Applicant was stood down as the confirmatory test was being undertaken.

The Applicant had concerns regarding how the test was conducted, namely that the test kit was already open when he received it, that other standard procedures were not followed, and had concerns regarding the chain of custody of the urine sample.  The confirmatory test detected 41 µg/L of THC which was above the cut-off level of 15 µg/L but below the onsite cutoff of 50 µg/L, so it was considered a positive result.

On 28 August 2025, the Applicant received a show cause letter asking him to show cause as to why he shouldn’t be dismissed for serious misconduct due to the positive drug test.  The Applicant responded the next day admitting to his actions and stating he believed he was fit for work due to the self-test.

The employer terminated the employment relying on the assertion that the Applicant’s conduct constituted breaches of their alcohol and drug policy, cardinal rules, and standard of business conduct which include that the employer has a zero tolerance approach to alcohol and drugs and that workers must maintain a blood alcohol concentration of zero and must not have a detectable level of drugs while attending work and performing work.

The Applicant sought an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth).

Findings

The FWC found there was a valid reason for dismissal, but the dismissal was unfair because there were alternative sanctions available outside of termination of employment.  The FWC also stated that zero tolerance does not mean dismissal must follow every breach of a drug and alcohol policy.  Further, the FWC highlighted that the employer did not follow its testing procedure properly including failing to offer a second on-site test as required.  Expert evidence also demonstrated that it was unlikely the employee was intoxicated or impaired at work due to the very low concentration of the THC metabolites in his system at the time.

Ultimately, the FWC found that the employee was unfairly dismissed and reinstated the employee with continuity of service and lost wages.  In this finding, the FWC took into account the 27 year long service of the employee and that the employee had no prior performance or conduct complaints during the employment.

Steps for employers

Glenn v Downer is a cautionary tale of when strict adherence to a zero-tolerance drug policy can lead to reinstatement as a remedy in the event of an unfair dismissal claim.

To minimise exposure to unfair dismissal claims, employers should:

• ensure any zero-tolerance policies do not operate as automatic dismissal provisions;
• act practicably with discretion and consider all options;
• genuinely consider all available disciplinary options prior to terminating employment;
• consider relevant mitigating factors such as length of service, history of conduct, performance record and seriousness of the breach;
• ensure strict and consistent compliance with drug testing procedures; and
• recognise that a non-negative drug and alcohol test does not automatically mean impairment.

Lavan’s experienced Employment, Safety, and Education team can assist employers with issues relating to zero tolerance drug and alcohol policies.

Our thanks to Muneira Jibril, law graduate, for her assistance with this article.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.