[2025] FWCFB 133
Citation: [2025] FWCFB 133
At a glance
- Employees affected
- 1
What happened
Lee Witherden, a long-term stevedore at DP World Sydney Limited's Port Botany terminal, tested positive for cocaine metabolites during a random drug and alcohol test in May 2024. He admitted to recreational cocaine use during periods of leave. Following a show cause meeting, DP World terminated his employment for serious misconduct. Witherden applied for unfair dismissal, and Deputy President Wright found the dismissal harsh and unreasonable, ordering reinstatement. DP World appealed this decision.
What was decided
The Fair Work Commission Full Bench granted permission to appeal DP World’s case but ultimately dismissed the appeal. The Full Bench found no error in the Deputy President’s decision that Witherden’s dismissal was harsh and unreasonable, considering factors like his long service, the policy's lack of clarity regarding metabolites, and the failure to consider rehabilitation. The Deputy President’s order for reinstatement also stood.
What it means for employers
Employers should ensure drug and alcohol policies are clear and comprehensive, addressing issues like metabolite testing and hangover effects. Consideration of rehabilitation options and procedural fairness is crucial when dealing with employee misconduct, particularly for long-serving employees.
What it means for employees
Employees facing dismissal should understand their rights and seek legal advice. Lengthy service and mitigating circumstances can influence a finding of unfair dismissal.
Every statement above is drawn from the published decision. Read the original here:
https://www.fwc.gov.au/documents/decisionssigned/pdf/2025fwcfb133.pdfWant more cases like this?
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This summary was drafted by AI from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →