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Reassignment of duties appropriate following working while under influence of prohibited drug

An employee was driving an agency vehicle in the workplace, breached safety rules, and caused a private sector operator to initiate emergency stop/evasive action. As a result, the employee's driving permit for that workplace was suspended for 12 months. The employee was subsequently drug tested and found to have traces of an illegal drug in his system.

As a consequence the employee was found to have breached the Code of Conduct.

The employee claimed that his breach of safety rules was minor and denied that he used prohibited drugs. He believed he may have been a victim of drink spiking a few days before he was tested by the agency. Neither the breach nor sanction decision maker accepted this submission.

The employee was reassigned duties to another location as a sanction for misconduct and, as a consequence, lost shift penalties and other allowances. The employee sought review by the Merit Protection Commissioner of the sanction decision. He wanted the sanction overturned or at least changed to a sanction that would not cause him as much financial disadvantage.

The Merit Protection Commissioner considered that the employee's failure to abide by safety rules by failing to stop and give way to a vehicle had the potential to cause a serious accident. The agency also had a zero tolerance policy towards the use of illegal drugs which the employee had failed with comply with. The employee's actions involved a breach of the agency's trust and had the potential to seriously damage the reputation of the agency and the APS. The Merit Protection Commissioner considered that the breaches were serious in nature.

The Merit Protection Commissioner considered whether the employee's claim that he unknowingly took a prohibited drug was a mitigating factor but concluded that it was not. The Merit Protection Commissioner found the employee's claims of drink spiking unconvincing as he provided no supporting evidence and his suggestion that he was unaware at the time that his drink had been spiked was implausible.

As indicated, the Merit Protection Commissioner considered that the misconduct in question was serious. For this reason, and in the absence of mitigating factors, the Merit Protection Commissioner concluded that a sanction of re-assignment of duties to another location was the appropriate sanction, notwithstanding the financial effect on the employee.