Lee Witherden v DP World Sydney Limited - [2025] FWC 294

[2025] FWC 294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Lee Witherden
v

DP World Sydney Limited

(U2024/7478)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 3 FEBRUARY 2025

Application for an unfair dismissal remedy – random drug testing – positive test result for cocaine metabolites – drug and alcohol policy – valid reason for dismissal –– dismissal was harsh and unreasonable – reinstatement order

Introduction and outcome

On 27 June 2024, Mr Lee Witherden made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with DP World Sydney Limited (DP World).

DP World operates an intermodal container stevedoring terminal at Port Botany in the state of New South Wales. Mr Witherden was employed as a stevedore by DP World. On 7 June 2024, Mr Witherden was dismissed after testing positive for cocaine metabolites following a random drug test on 27 May 2024.

There was no dispute between the parties that in testing positive for cocaine metabolites on 27 May 2024, Mr Witherden breached DP World’s drug and alcohol policy and that there was a valid reason for the dismissal. However, Mr Witherden contended that the dismissal was harsh because of numerous factors including his age and lengthy and practically unblemished employment history, the absence of any risk that Mr Witherden was impaired when he attended work and DP World’s failure to consider options other than dismissal.

In summary, I have found that Mr Witherden breached DP World’s drug and alcohol policy and that this was a valid reason for dismissal. However, due to other factors, including Mr Witherden’s lengthy period of service, the inadequacy of the information in the drug and alcohol policy regarding inactive metabolites and hangover effects and DP World’s failure to consider rehabilitation, I have determined that Mr Witherden’s dismissal was harsh and unreasonable and made orders for reinstatement and continuity of employment.

The hearing

There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

After taking into account the views of Mr Witherden and DP World, and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing pursuant to s.399 of the FW Act.

At the hearing, Mr Witherden was represented by Mr Kirk Bond, National Legal Officer, Maritime Union of Australia Division of the Construction Forestry and Maritime Union (MUA). DP World was represented by Mr James McLean of Counsel who I granted permission to appear pursuant to s.596(2) of the FW Act as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

The following witnesses gave evidence on behalf of Mr Witherden, and were cross-examined by Mr McLean:

Mr Witherden
Professor Robert P. Weatherby, Adjunct Professor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 294
Decision Date: 3 FEBRUARY 2025

CaseChat Overview and Summary

Lee Witherden, a stevedore employed by DP World Sydney Limited, was dismissed after he tested positive for cocaine metabolites on 27 May 2024, in breach of DP World's drug and alcohol policy. Witherden applied to the Fair Work Commission (FWC) for an unfair dismissal remedy. The central issue was whether the dismissal was harsh, unjust or unreasonable. Witherden argued that the dismissal was unfair due to his lengthy and unblemished employment history, the absence of any risk that he was impaired when he attended work, and DP World's failure to consider options other than dismissal. DP World argued that Witherden's breach of the drug and alcohol policy provided a valid reason for dismissal, and the dismissal was not unfair due to the seriousness of the breach and the potential risk to safety. The Deputy President of the FWC found that the dismissal was harsh and unreasonable. The Deputy President concluded that the dismissal was unfair because the seriousness of Witherden's breach of the drug and alcohol policy was outweighed by the fact that he was not intoxicated by cocaine, DP World relied on a 'high range' level with respect to inactive metabolites to attribute a greater level of seriousness in relation to Witherden's conduct, and the information available to Witherden and other employees about the drug and alcohol policy was inadequate. The Deputy President made orders for Witherden's reinstatement and continuity of employment. The Deputy President decided not to make an order for lost remuneration because of Witherden's inaccurate evidence in relation to the Hunterlink appointments.

Orders