Sacked Coles Glenorchy driver loses chance to fight dismissal after allegedly failing drug test

A delivery driver who was sacked for serious misconduct after allegedly failing a drug test has now also lost his chance to fight for unfair dismissal.

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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 had 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 Fair Work Commission upheld an appeal by Coles against Commissioner Yilmaz’s decision, delivering a fatal blow to the man’s challenge.

They noted an initial oral 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 Coles refused to pay his leave entitlements, especially since he had lost his job “so close to Christmas” in December last year.

A man who had been driving for Coles for about seven years has lost his unfair dismissal fight against the company. Picture: David Swift

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

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” in winning the unfair dismissal battle “despite my strong concerns about testing procedures” – but said he still wanted to fight for his leave entitlements.

In its published decision, the full bench of the Fair Work Commission said granting the man an extension to pursue his unfair dismissal claim had been in error.

The bench said the man’s decision to pursue the course of action because of his concerns around leave payments did not constitute exceptional circumstances that would warrant the granting of an extension.

The Fair Work Commission also said 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.

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