Smart Workplace Policies, Stronger Cultures: Compliance Made Clear

Well-drafted workplace policies are more than just rules for employees to abide by – they are a crucial document to assist employers manage risk, ensure compliance and maintain a fair and transparent work environment.

As recently highlighted in Lee Witherden v DP World Sydney Limited [2025] FWC 294 an ambiguous and inadequately communicated policy can expose employers to significant legal and operational risks.

In June 2024, DP World (the employer) dismissed an employee when he returned ‘high readings of cocaine metabolites’ following a random drug test.

What the workplace policy stated

1. The company’s ‘Fit to Work’ critical safety commitment stated that the expectation placed on the employee was that they would be drug and alcohol free at work.
2. If the employee was influenced by a substance that would impede their ability to perform their job safety, the expectation set on the employees was that they would declare this.
3. The ‘Alcohol and Other Drugs Policy’ (‘AOD policy’) noted that whilst DP World has a ‘zero tolerance’ approach, “a breach of the AOD policy does not automatically result in dismissal”.

The outcome of the drug test

The employee’s drug test did not return positive for cocaine but instead for non-active metabolites. The AOD policy did not explicitly state that a positive test for a non-active metabolites – substances that remain in the body after the drug’s effects have worn off – could lead to dismissal.

During the case the employee contested that “while he was generally aware of the AOD Policy, DP World did not explain to him what it means to be ‘fit for work’ under the AOD Policy, the significance of cut-off levels and how the Australian Standards apply.” Furthermore, that when the employee attended work on the day of the drug test, he knew that he was not impaired by drugs and therefore believed he was ‘fit to work’.

Key findings of the case

The Fair Work Commission found that the employee was not intoxicated at work and due to the ambiguous wording in the workplace policy, they had not knowingly breached the policy. Furthermore, the company had failed to adequately train the employee on its tests for inactive metabolites as well as ‘drugs’ and that detection of these would result in a positive test even after the drug had left the system.

Deputy President Wright said that “Employees should have been informed that they will be tested for inactive metabolites and that detection of these will result in a positive test even after the parent drug has left the employee’s system.”

This lack of clarity along with the employee’s employment history, cooperation with the disciplinary process and remorse weighed in favour of a finding of unfairness.

The risks of ambiguity in policies

This case highlights several key risks associated with ambiguous workplace policies:

1. Legal challenges: if a workplace policy lacks clarity, employees may contest disciplinary actions, leading to costly legal disputes.
2. Inconsistent application: when workplace policies provide too much discretion, they can be applied inconsistently, creating perceptions of unfairness and potential claim of discrimination.
3. Employee confusion: employees must fully understand workplace policies to comply with them. Poor communication and training can lead to unintentional breaches and disputes.
4. Reputational Damage: some legal challenges can lead to public cases like this one. This can cause harm to the employer’s reputation, affecting employee morale and external perceptions for the business.

This serves as a reminder that workplace policies must be more than just words on paper. They should be clear, current, enforceable, and effectively communicated to employees to mitigate risks and ensure fairness.

Even with well-crafted workplace policies, there is equal importance placed on training the employees on the application of the policy, and ensuring that employees understand how the policy will be applied to them.

Discover how to move beyond ‘tick box compliance’ in our latest article. Principal IR Consultant Kirsten Hartmann examines a recent Fair Work decision that draws parallels between formal training programs and casual toolbox talks. 

Where to from here?

The above Fair Work case sets a good example for businesses to take the necessary steps to strengthen their workplace policies in order to minimise legal risks and avoid negative impact to their brand reputation. The starting point with workplace policies is often with a review and update of existing policies, which involves tracking ambiguous language or unclear terms, which don’t communicate the consequences of policy breaches.

Enhance your workplace policy communication by:

1. Undertaking comprehensive training that explain policies in detail
2. Have policies reviewed by legal professionals
3. Update policies to reflect recent legal decisions
4. Provide regular refresher training sessions