Blog

Drug Testing: Employer Takeaways from Fair Work

Mr Jethro Aisa v Southern Cross Protection Pty Ltd ([2025] FWC 1856) – highlighting the key issues, arguments, Fair Work Commission (FWC) findings, and employer learnings related to drug and alcohol testing:

As we continue to support safe, drug-free workplaces, two recent Fair Work Commission decisions offer timely lessons.
In Mr Jethro Aisa v Southern Cross Protection Pty Ltd ([2025] FWC 1856), the dismissal was upheld because the employer had:
✅ A clear, lawful drug and alcohol policy
✅ Applied it consistently
✅ Provided the employee with a fair process, including the opportunity to respond
In contrast, Adam Mills v Glamorgan Spring Bay Council (U2024/7491) highlighted that a positive drug result alone isn’t enough. Without a fair process — including considering alternatives and allowing for employee input — dismissal may be deemed unjust.

Issue:
Mr Jethro Aisa, a security guard employed by Southern Cross Protection (SXP), was dismissed after returning a confirmed positive drug test for methylamphetamine. He claimed the dismissal was unfair, arguing the testing procedure was flawed and that he was not impaired at work.

📌 Why Mr Aisa Claimed the Dismissal Was Unfair

  • Challenged the fairness of the drug test procedure, including concerns about privacy and being allowed to continue working during the testing.
  • Argued he was not impaired at the time of work and that the drug was consumed on his days off.
  • Denied knowledge of the company’s Drug and Alcohol Policy, although he admitted to undergoing induction and refresher training.

⚖️ Why the FWC Found the Dismissal Was Justified

  • SXP had a clear, well-communicated Drug and Alcohol Policy in place that prohibited returning a positive result over the threshold, regardless of impairment.
  • Mr Aisa returned a positive result for methylamphetamine (208 ng/mL), well above the permitted limit (50 ng/mL).
  • The Commission found this to be a valid reason for dismissal, as it breached company policy and posed a safety and reputational risk, especially in his role as a night-shift security guard at a distribution centre.
  • The policy and procedure were lawful, reasonable, and compliant with the relevant Australian Standards.
  • Mr Aisa was informed of the result, given a chance to respond during a ‘show cause’ process, and his procedural fairness was upheld.
  • Although impairment wasn’t proven, the policy focused on presence of drugs rather than demonstrated impairment, which the FWC accepted as appropriate.

🧠 Key Learnings for Employers on Drug & Alcohol Testing

  1. Clear Policies Are Critical: Ensure drug and alcohol policies are well-documented, up-to-date, consistent with relevant standards (e.g. AS/NZS 4760), and clearly communicated to employees.
  2. Enforce Policies Consistently: Enforce the policies fairly and consistently, regardless of whether impairment is evident. Presence alone can constitute a breach if your policy allows for it.
  3. Training and Acknowledgement: Provide induction and refresher training on D&A policies, and retain evidence of employee acknowledgement (e.g., signed forms or digital confirmation).
  4. Procedural Fairness Matters: Give the employee proper notice, allow a support person, and conduct a formal “show cause” process before making a dismissal decision.
  5. Out-of-Hours Use Can Still Be a Risk: Even if drug use occurs outside of work, attending work with detectable levels can be a valid reason for termination, especially in safety-sensitive roles.
  6. Use Qualified Testing Providers: Engage certified testers to ensure testing procedures align with national standards, adding robustness to your enforcement decisions.

✅ Final Decision

The FWC found the dismissal was not harsh, unjust or unreasonable. The breach of the employer’s drug and alcohol policy constituted a valid reason, and proper procedure was followed. The application for unfair dismissal was dismissed.

Click here for the judgement