Too clever by half: Do not quibble with the cut off points for drug testing

In a recent Fair Work Commission decision ( Eather v Whitehaven Coal, Deputy President Sams, 1 January 2018), the FWC had no sympathy for an employee whose employment was terminated when he recorded 18mcg of cannabinoids, compared to the Australian Standard of 15mcg as the maximum allowable.

Mr Eather claimed that the company's testing practice misled him; that practice being the use of screening cups for urine testing, which were only capable of registering concentrations of 50mcg or above. He claimed that this was the standard which should apply. However, the Commission held that Mr Eather was well aware, from both policy and experience, that a non-negative screening test result meant that the screening test would be sent to a lab for more precise assessment, and that this would similarly be the case for follow-up tests.