The Fair Work Commission recently presided over the unfair dismissal case of a forklift operator who was fired for avoiding a drug test. His reason? The worker claimed that he could not take the test as he had defecated in his pants.
This is one of the more embarrassing arguments made against dismissal in the Fair Work Commission’s history. But did it succeed? Read on to learn about the events of this case –
Mr Jake Candido v Scalzo Food Industries [2024].
Worker skips drug test due to “accident” in pants
Jake Candido was employed as a forklift operator for Scalzo Trading Co Pty Ltd. In March 2024, he had received a final warning from Scalzo after testing positive for drugs. He was told that further breaches of the company’s drug and alcohol policy would not be tolerated.
On 6 May 2024, Mr Candido was loading a truck when his supervisor approached and yelled out to him. He turned around and saw that the supervisor was holding a sheet of paper with a testing list on it.
Worker soils pants, gets dismissed
It was at this point that Mr Candido told his supervisor, “I’ve got to go, I just shat myself.” The supervisor told him that he had been chosen for a drug test that day. He also told Mr Candido that it would look bad if he left.
But he did not heed his supervisor’s warning. Mr Candido headed straight for his car and drove home. Scalzo attempted to call and text him, but to no avail. Mr Candido later claimed that there had been a problem with his phone.
Scalzo’s drug and alcohol policy states that if an employee tries to avoid a drug test, it is a breach of policy and disciplinary action will result. The policy also states that a second positive test will result in instant dismissal. As such, Mr Candido was summarily fired by the company eight days later for serious misconduct.
Worker blames illness for “accident”
Mr Candido thereafter lodged an unfair dismissal claim with the Fair Work Commission. He argued that he did not try to avoid the drug test. Rather, that he had rushed home after “defecating in his trousers.” Mr Candido also stated that he had turned up to work despite feeling unwell. He told the Fair Work Commission that he experienced “great embarrassment” from soiling his pants.
Mr Candido said he had acquired a medical certificate that stated he had been found to be “unfit for work” on 6 and 7 May 2024. He also claimed that Scalzo’s drug testing process had unfairly targeted him by singling him out for repeated tests.
Employer makes case to Fair Work
Meanwhile, Salzo argued to the Fair Work Commission that Mr Candido had intentionally avoided the drug test. The company said that there were alternative options available to him on the day of the incident. This included using the bathroom to clean up before taking the test or undergoing the test at a later time.
Scalzo maintained that Mr Candido’s dismissal was justified. The company argued that Mr Candido did not need to leave the site for a medical emergency. Scalzo further noted that Mr Candido’s job as a forklift operator was high risk. Therefore, the company had taken appropriate steps to enforce its drug and alcohol policy after Mr Candido’s first offence.
Fair Work Commission decides
At Mr Candido’s unfair dismissal hearing, the Fair Work Commission found that he had indeed soiled his pants.
“I accept, with some hesitation, that Mr Candido had an accident in his trousers on 6 May 2024,” Deputy President Colman said.
However, the Fair Work Commission did not accept that this situation was the main reason for him to leave the workplace that day. It was noted that there were other reasonable options available to Mr Candido that he did not pursue, such as cleaning up at work before taking the test. The commission said that as Mr Candido was on a final warning, he “needed to take the matter very seriously, but he did not take it seriously at all.”
With respect to his medical certificate, the Fair Work Commission found that it did not attest to any kind of “medical emergency” that would have compelled Mr Candido to leave work.
Fair Work rejects unfair dismissal claim
The Fair Work Commission ultimately determined that Mr Candido had left work with the intention of avoiding the drug test. Therefore, he had violated Scalzo’s drug and alcohol policy. It was found the company had not acted disproptianilty in firing him for serious misconduct and that it had a valid reason for doing so.
“Failure to comply with a reasonable workplace drug and alcohol policy is unacceptable, first and foremost because it undermines efforts to keep workers safe, and secondly because it exposes the employer to risk,” said Deputy President Colman.
He further stated that had Scalzo only given Mr Candido a warning, he could have gone on to injure someone with his forklift while under the influence of drugs. This would have left the company open to accusations of not ensuring workplace health and safety.
The Fair Work Commission therefore deemed Mr Candido’s dismissal not to be harsh, unjust, or unreasonable.
Weed-smoking Cadbury worker dismissed for refusing drug test
Another recent unfair dismissal case involving a worker who refused to take a drug test is
Brayden Stacey v Mondelez Australia Pty Ltd [2024]. Brayden Stacey had been employed at the Claremont Cadbury chocolate factory in Hobart since 2016. The incident that led to his dismissal occurred on 12 October 2023 when Mr Stacey was randomly selected for a drug test at approximately 7 am.
He told the Fair Work Commission that he had smoked marijuana the previous night, which he explained was to help him sleep. Upon learning about the drug test, Mr Stacey sent a text message to his supervisor stating, “Gonna have to go home sick, hate to do it.” He said he “had a few things I shouldn’t have last night. I know it’ll come up on the test so [I’ll] be told to go home either way.”
His supervisor responded to this text by texting “OK.” Mr Stacey argued to the Fair Work Commission that he interpreted this response as approval to leave the workplace
Employee gets the sack
Following the text conversation, Mr Stacey waited for approximately 30 minutes in the factory break room before leaving the site. He then walked for 90 minutes to his girlfriend’s house. When later questioned by Mondelez about the incident, he claimed that he only smoked weed on “special occasions.”
When asked if the night of 11 October was a special occasion, he replied “No”. However, he said that he was celebrating going to Queensland and to de-stress. This was because his “pop has cancer and his aunty is unwell,” Fair Work Commission records stated. He also claimed that he had smoked that night to help him sleep.
None of this, however, convinced Mondelez to show clemency. Mr Stacey was subsequently suspended without pay before being fired by the company. He later lodged an unfair dismissal claim with the Fair Work Commission.
Employer argues validity of sacking
Mondelez argued to the Fair Work Commission that Mr Stacey’s termination was valid as he had breached its zero-tolerance drug and alcohol policy. This, in addition to breaching workplace safety regulations. The company stated that its zero-tolerance approach to drugs and alcohol was due to the potential risks of its workplace.
The chocolate factory operates with moving conveyor belts, chemicals used for cleaning, and hot surfaces. Mondelez emphasised that safety standards are crucial to protect employees but also to maintain product cleanliness and quality. The company also cited Mr Stacey’s failure to follow a reasonable management direction as a reason for his sacking.
“Not a truthful witness”: Employee’s claims refuted by Fair Work
Mr Stacey argued to the Fair Work Commission that he had not received adequate training on the company’s drug and alcohol policy, a claim Mondelez disputed. Evidence presented showed that Mr Stacey had attended a training session on the policy in October 2021.
At his unfair dismissal hearing, Mr Stacey initially denied attending the session. However, he later withdrew his claim when Mondelez produced records showing his signature and gate access on the day of the training. The Fair Work Commission concluded that Mr Stacey’s testimony on this matter was “often inconsistent and self-serving.” It said that he “was not a truthful witness.”
“I panicked”: Employee admits knowledge of drug policy
When asked about leaving the workplace, Mr Stacey said that “I panicked as I knew I had smoked some weed to calm me down and help me sleep the night before.” He acknowledged that he should have taken the test and admitted that he had consumed weed the previous night. He said that he was “remorseful.”
Mr Stacey acknowledged his understanding of Mondelez’s drug and alcohol policy. When asked about his understanding of the policy, he said “You can’t be on site under the influence.”
Employee was concerned about “data privacy”
Despite this admission, Mr Stacey attempted to justify his refusal to take the test by raising concerns about the confidentiality of the test results. He suggested that there could be a data breach that would reveal his drug use to colleagues and possibly family members.
However, the Fair Work Commission rejected this explanation. It noted that Mr Stacey did not mention privacy concerns in his initial text message to his supervisor. He had only raised the issue after the fact. The commission found that Mr Stacey’s decision to leave the premises stemmed from his certainty that he would fail the drug test. It ruled out the argument that he had left due to data privacy concerns.
Employee claimed he was reformed drug user
Mr Stacey acknowledged to the Fair Work Commission that he used to be a “recreational drug user.” However, after Mondelez starting testing employees, he “made a conscious effort to reduce my intake to ensure compliance to the Drug and Alcohol Policy.”
He recognised that on 11 October he had “momentarily lapsed and slipped back into my old ways.” However, the Fair Work Commission found these statements of Mr Stacey “inconsistent and most unsatisfactory.”
Fair Work rejects unfair dismissal claim
The Fair Work Commission also took issue with Mr Stacey’s own appraisal of his level of impairment on the day of the drug test. In his text to his supervisor, he had said “…I feel fine and capable enough to do my job though.”
The commission said that he was not in a position to determine his level of impairment.” It stated that he did not know the extent of THC (the psychoactive component of marijuana) in his system.
Ultimately, the Fair Work Commision ruled that Mondelez had acted within its rights to enforce its drug and alcohol policy in the interests of workplace safety. It therefore found that Mr Stacey had not been unfairly dismissed.
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