In civil contracting, where safety is non-negotiable, policies around drug and alcohol use must not only exist, but they must also be clearly communicated and consistently applied. The recent case of Lee Witherden v DP World Sydney Limited [2025] FWC 294, the Witherden case, illustrates how poor communication can invalidate even safety-centric policies.
Clarity Prevents Confusion
What the court said: DP World’s policy failed to explain that drug tests can detect non-active metabolites long after impairment ends.
What this means for you:
- Your policy must define “fit for work” comprehensively.
- Spell out that both active and inactive metabolites are tested, what the thresholds mean, and why they matter—even if they don’t indicate impairment.
Training Ensures Understanding
Court’s concern: Employees were not properly taught how test results translate into outcomes.
Action steps:
- Run workshops and toolbox chats explaining testing methods, detection windows, and consequences.
- Use scenarios (“What if…” examples) to make it relatable.
Fair, Flexible Application Builds Trust
Problem identified: DP World automatically dismissed staff without considering rehabilitation, despite its policy allowing it.
Best practice:
- Build discretion into your policy: allow warnings, rehabilitation, or temporary suspension – depending on context.
- Document decisions transparently, using consistent criteria.
Supportive Culture Fosters Safety
Court emphasised: The staff member’s mental health and long service should have triggered a rehabilitative response, rather than a punitive one.
How to apply it:
- Provide easy access to employee assistance programs (EAPs), counselling, rehab support.
- Encourage early disclosure, say it’s okay to ask for help before an incident happens.
Transparent Testing = Legally Sound Policy
Court requirement: Policies must show a “rational connection” between test results and workplace safety risk.
Implementation tips:
- Link test types directly to safety risks in your documentation.
- Cite external standards (like AS/NZS) to justify your thresholds.
Partial Checklist
Takeaway
The Witherden v DP World Sydney case isn’t just about one test gone wrong, it’s a warning. Even in safety-critical environments, a zero‑tolerance stance without clear communication, meaningful training, and fair implementation can lead to legal setbacks.
For civil contractors, that means:
- Be crystal-clear in your policy language.
- Make sure your team understands it.
- Apply it consistently and compassionately.
- And always link policy to your core priority, safety first.
CCF NSW can assist with reviewing policies, contracts and other documents. For assistance, contact CCF NSW on 9009 4000.