When zero tolerance becomes unfair

A recent decision of the Fair Work Commission is a reminder that even strict workplace policies do not automatically justify dismissal.

In Brew v Downer EDI Works Pty Ltd [2026] FWC 955, a long serving employee successfully challenged his dismissal after returning a low‑level positive drug test for THC metabolites. The Area Supervisor had worked for Downer for 27 years without any disciplinary issues. After a private social gathering where he took two puffs of a cannabis cigarette, he self‑tested the following day and received a negative result.

When Downer conducted a workplace test the following day, the result was non-negative for THC. Per policy, a non-negative test result requires a confirmatory test performed in a laboratory. The employee described concerns about the testing process, including the test kit already being open when he received it. The laboratory result detected 41 μg/L of THC metabolites, which was below the onsite cutoff of 50 µg/L. Expert evidence accepted by the Commission confirmed that although the employee was above the cutoff level for the confirmatory test, he was neither intoxicated nor impaired to the extent that he could not work.

Despite this, Downer dismissed the employee for serious misconduct, relying heavily on what it described as a “zero tolerance” approach. The Commission noted that Downer treated dismissal as the “default sanction” for a positive drug test result, even though its policies required consideration of mitigating factors and permitted other disciplinary actions, including warnings, counselling, and performance improvement plans.

Downer also relied on a “cardinal rule” prohibiting the consumption of alcohol or drugs or being under the influence in the workplace. The Commission rejected this, finding that the employee had not consumed cannabis at work and was not under the influence. The presence of metabolites alone did not establish a breach of that rule.

Ultimately, the Commission found the dismissal harsh because Downer failed to consider the worker’s long and exemplary service, the low reading, his honesty and self‑testing before work, and the absence of impairment before making the dismissal decision. Additionally, internal emails revealed pressure from senior executives to be resolute in its enforcement of drugs and alcohol in the workplace and dismiss, which suggested the outcome had been predetermined rather than genuinely considered.

The case is a reminder that disciplinary action for breaching a company policy must be fair and proportionate, and that not every breach warrants dismissal.

Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.