Driver’s sacking to stand

Work drug test battle

A GLENORCHY Coles driver who was sacked on his birthday after allegedly failing a drug test has lost his unfair dismissal battle on a technicality.

The man strongly denied he’d taken drugs, questioning the test’s credibility before the Fair Work Commission.

Earlier this year the man, who worked for Coles between 2013 and 2020, was granted an extension of time to file a late unfair dismissal claim after missing the cut-off point.

At the time, Commissioner Leyla Yilmaz noted Coles had not provided an explanation as to why an oral swab and a further test sent to a laboratory yielded different results.

But on Thursday, the full bench of the commission upheld an appeal by Coles against Commissioner Yilmaz’s decision.

They noted an initial swab produced an unconfirmed reading of methamphetamine, but a second test produced a result of cannabinoids, but no methamphetamine.

The man was dismissed for serious misconduct, without payment of his long service leave or notice of termination.

He denied having taken drugs and argued it was unfair that Coles refused to pay his leave entitlements, especially since he’d lost his job “so close to Christmas” in December last year.

The man also said he got confused about the processes surrounding lodging his unfair dismissal claim, ultimately missing the 21-day cut-off.

He later told the commission he was “happy just to wash my hands of the situation” regarding the drug test credibility claims and his dismissal because Coles had “fought it very voraciously” and he felt his chances of winning weren’t high.

The man said he felt he “didn’t have much of a hope” of winning the unfair dismissal battle “despite my strong concerns about testing procedures” — but he still wanted to fight for his leave entitlements.

In its published decision, the commission said granting the man an extension to pursue his unfair dismissal claim had been in error.

It said his decision to pursue the course of action because of his concerns around leave payments did not constitute exceptional circumstances.

The commission also said that even though it had refused an extension of time, that “in no way” precluded the man from seeking recourse in terms of his long service leave, noting there were other mechanisms that allowed him to do so.