Airport worker dismissed for weekend choof
In a unfair dismissal case involving the use of cannabis is Sharp v BCS Infrastructure Support Pty. The case involved Owen Sharp, a maintenance worker. Mr Sharp worked for BCS Infrastructure Support Pty Limited, which was contracted by Qantas for ongoing baggage handling system maintenance. Mr Sharp’s job was categorised as “Safety Sensitive Aviation Activities” under the civil aviation safety regulations.
The saga began when Mr Sharp admitted to consuming cannabis over the weekend. He subsequently underwent a mandatory drug test, which revealed a cannabinoid level of 112µg/L. This far exceeded the BCS’s tolerance threshold of 15µg/L, leading to his immediate dismissal for serious misconduct.
Employee makes unfair dismissal argument to Fair Work Commission
In response, Mr Sharp claimed that his dismissal was unjust and filed an unfair dismissal claim. He argued to the Fair Work Commission contended that his conduct and positive drug test did not warrant instant dismissal. However, the Fair Work Commission did not share this view.
It ruled that Mr Sharp’s dismissal was not harsh, unjust or unreasonable. This was primarily because of the nature of his work, which involved safety-critical aviation activities. The Fair Work Commission acknowledged the paramount importance of safety in such roles and, as a result, upheld the BCS’s strict stance on drug use.
Employee appeals unfair dismissal decision
Unsatisfied with this decision, Mr Sharp decided to appeal the ruling through the Full Bench of the Fair Work Commission. His argument rested on the assertion that he was not impaired when he arrived for work on the day of the drug test. This therefore implied that his positive test result was irrelevant.
The Full Bench of the Fair Work Commission acknowledged the challenge in determining impairment accurately. It noted that this was particularly difficult in cases involving cannabis use, for which there is no definitive scientific test. While saliva testing may be a more precise indicator of recent cannabis use than urine testing, it still cannot unequivocally establish impairment or non-impairment.
The Full Bench of the Fair Work Commission stated that in situations where assessing the degree of drug-induced impairment is difficult, an employer might be justified in dismissing an employee. That is, based solely on a positive test result that violates the company’s drug and alcohol policy. This justification is particularly compelling when there are substantial safety concerns at stake. The original unfair dismissal ruling against Mr Sharp was therefore upheld.
Lets now look at your rights and what you can do in depth
Can you be dismissed or suspended for using medicinal cannabis at work?
Medicinal cannabis in the workplace is becoming a more common phenomenon as Australia’s doctors continue to prescribe the drug at increasing rates. In fact, the amount and usage of medicinal cannabis is understated in both the community and the workplace. But for many Australian workers, the rules around medicinal cannabis in the workplace are largely unknown, inspiring many questions.
Also, what complicates matters is that many employers cast a moral view on cannabis. They often unfairly assume that the employee is a drug addict and form their policies with this in mind. Can you be sacked for using medicinal cannabis at work? This is an important question in the modern industrial relations era. For instance, is it OK to be under the influence of medicinal cannabis in the workplace? What if your employer has a zero-tolerance drug and alcohol policy – are exceptions made for medicinal cannabis?
Employers seem to harbour double standards when it comes to cannabis. Employees often go to work after taking their anti-depressants or pain medication, so should these be treated any different to medicinal marijuana? You take a pain killer for that migraine at lunch time. This seems acceptable, but medical prescribed cannabis is not. And can you be dismissed for it? In this article, we answer all these questions surrounding medicinal cannabis in the workplace. And we look at a recent unfair dismissal case that illustrates how the Fair Work Commission considers the issue of cannabis in the workplace.
Medicinal cannabis in the workplace is becoming more common
Medicinal cannabis use was legalized by the Australian government on a federal level in 2016 with the amendment of the Narcotics Drug Act 1967. This allowed Commonwealth approved medical professionals to obtain cannabis to treat patients. Since 2016, there have been 248,000 prescriptions of the drug handed out to Australians, a 2022 study has revealed. The last few years has seen a boom in medicinal cannabis use, with prescriptions having doubled from 2020 to 2021. Over 122,000 prescriptions were handed out in 2021 alone, compared to just 2,500 in 2018.
Medicinal cannabis has been used to treat more than 140 medical conditions. Chronic pain, anxiety, sleep disorders, epilepsy and multiple sclerosis are among some of the most common conditions for which medicinal cannabis is prescribed. With the growing number of prescriptions, navigating the rules around medicinal cannabis in the workplace will soon become a key concern for Australian workers and employers, if it hasn’t already.
. Drug addicts are stereotyped and are on the margins of society. Medicinal cannabis has changed this. What was a dismissal 20 years ago is now an unfair dismissal. The Fair work Commission constantly has to sort this out.
Is it legal to be under the influence of medicinal cannabis in the workplace?
The use of medicinal cannabis in the workplace raises key concerns for employees, even though a prescription is completely legal. It’s important to consider whether your use of medicinal cannabis in the workplace can detrimentally impact your ability to safely perform your job. Cannabis contains two main components – Cannabidiol (CBD) and tetrahydrocannabinol (THC). The chief psychoactive component of cannabis is THC, which provides cannabis users with the feeling of being “high.”
It’s critical to understand that a workplace urine drug test can detect THC in your system up to one month after smoking or ingesting cannabis. A saliva drug test can identify THC in your system within four to six hours after consumption. Any THC is unlikely to be detected 24 hours after consumption. The THC in your system can mean (or may mean) you can’t perform your job. For instance, if you are required to operate heavy machinery or drive. In all Australian states and territories, it is illegal to drive while you have THC in your system.
When it comes to other types of jobs, you still need to carefully consider the affect that medicinal cannabis can have on your performance. The context of your work along with the nature of your employer’s policies regarding prescription drugs need to factor into this consideration. Many workplace investigations, particularly in the mining and construction sector relate to drug use. These industries certainly have a high rate of dismissals around the issue of OH&S.
What does the employer’s drug and alcohol policy say
It’s important to carefully review your employer’s “drug and alcohol” policy. Specifically, with regard to how it refers to prescription medication, other controlled substances and intoxication. You should also find out if the policy has any provisions regarding drug testing and the consequences of testing positive. For instance, if you can be stood down or dismissed for having a positive result. An example of this is some companies have a policy that say you will be sacked. In other words, it’s a non-negotiable outcome, almost regardless of the situation. Others have a policy that says you may be sacked. In other words, the circumstances will be considered.
What we have found is a pattern of companies that, when faced with an employee who has a positive drug test, will often cite OH&S issues, drug policies and an inability to perform the inherent functions of the role as reasons for their dismissal. However, they seem to decide as to whether an employee is dismissed based on the drug they have taken. It’s a kind of discriminatory behaviour that is not outlawed.
There have always been drugs in the workplace. It’s the types and usage that has changed. The ability to use legal drugs for depression and anxiety, sleep disorders and pain relief for arthritis, the effects of cancer etc is rarely questioned unless a problem arises.
Do you need to tell your employer you have a prescription?
Every Australian employee has the right to privacy. Therefore, you don’t have to disclose to your employer that you have a prescription and are using medicinal cannabis in the workplace. However, if your employer’s policy allows for the consumption of prescription medication, you may want to disclose it to them. Convention is that you have to inform your employer of any issue that effects your ability to do your job. If it doesn’t affect your ability, then you’re not obligated to automatically inform them.
If your employer has a “zero-tolerance” policy around prescription drugs, you may want to take a proactive approach and inform them that you are using medicinal cannabis in the workplace. This can help you establish an understanding with your employer about how your medical treatment affects your work. Also, it can help you avoid trouble and possibly being dismissed in the event that your employer finds out that you are using medicinal cannabis in the workplace.
Can I be dismissed for disclosing my cannabis prescription to my employer?
You can’t be dismissed for simply having a legal cannabis prescription, or any medical prescription for that matter. In fact, if you have been suffering from a medical condition for a long time, it may be classified as a disability under federal and state laws. This means that if your employer were to treat you differently or adversely for having a cannabis prescription to treat your medical condition, it could be considered discrimination. You may then have the right to make a general protections claim against your employer through the Fair Work Commission.
This is what a Queensland rail worker did recently after he was dismissed for taking medical cannabis in the workplace. The worker had been legally prescribed cannabis to treat anxiety and sleep deprivation. He’s currently seeking almost $250,000 in damages from his former employer, with the case still pending.
Drugs in the workplace. Different workplaces and circumstances require some context as to the outcomes, policies and whether dismissal should occur.
Can I be dismissed if my employer has a zero-tolerance policy?
The law and its application by the Fair Work Commission and the courts is still uncertain when it comes to zero-tolerance workplace drug policies. One of the factors contributing to this is that sometimes a workplace policy that claims to be zero-tolerance policy isn’t actually so. This was demonstrated in the recent unfair dismissal case Mr Gary Hilder v Sydney Trains [2019]. It involved a 64-year-old Sydney Trains worker who was dismissed after he tested positive for cannabis due to a random drug test.
In October 2018, customer service attendant Gary Hilder randomly bumped into an old friend he hadn’t seen for some time. He was invited to his house, and while there, was offered a single cannabis cigarette to smoke. Mr Hilder went home and had dinner with his family, feeling no ill effects. So too the next day when he turned up for work, confident that he could do his job. But at 7am, Mr Hilder was given a urine test that produced a positive result for cannabis metabolites. Mr Hilder was subsequently suspended without pay while Sydney Trains launched an investigation into the result.
During the investigation, Mr Hilder admitted that the night before the positive result, he had smoked cannabis for the first time in over 30 years. This breached Sydney Trains’ zero-tolerance drug and alcohol policy. In November, Mr Hilder was dismissed by Sydney Trains for serious misconduct. He subsequently made an unfair dismissal claim with the Fair Work Commission.
Fair Work Commission rules on the unfair dismissal case
At the unfair dismissal hearing, Sydney Trains contended that it had considered Mr Hilder’s mitigating and personal circumstances when it dismissed him. Also, that its decision to dismiss Mr Hilder was in line with its zero-tolerance drug and alcohol policy as well as its disciplinary policy.
However, the Fair Work Commission found that the dismissal was unfair for several reasons. This included because:
- Mr Hilder’s smoking of the single cannabis cigarette wasn’t serious misconduct nor was it reckless or deliberate. Rather, it was a one-off incident and an error of judgement.
- There was an inconsistency between Sydney Trains’ zero-tolerance drug and alcohol policy and its disciplinary policy. The latter required the consideration of mitigating circumstances, which left many staff members unsure of how it would be applied.
- While Sydney Trains professed to have a zero-tolerance drug and alcohol policy, this actually wasn’t true. An employee would breach the policy if they were tested to have a THC level of more than 15ug/Ls. However, the test could only determine if at least 50ug/ls was present.
- Sydney Trains hadn’t effectively communicated the zero-tolerance policy to staff. It was accepted that had Mr Hilder known that any level of cannabis in his system would lead to dismissal, he would have acted differently the previous night.
Personal circumstances have to be considered
The Fair Work Commission also took Mr Hilder’s personal circumstances into account. This included his age, that he had a dependent child living with him, and his limited ability to find a new job. Mr Hilder’s precarious financial situation and the fact that he was remorseful was also taken into account. The Fair Work Commission ultimately ruled that Mr Hilder’s dismissal had been unfair and ordered that he be reinstated.
Zero tolerance for drug use – regardless of the type, automatic dismissal will follow. This can apply to some higher risk workplaces. It can also be an easy out for the employer who then doesn’t have to consider all the relevant facts and circumstances.
Worker dismissed for cannabis use
Another unfair dismissal case that involved an employee being dismissed for breaching a zero-tolerance policy is Hancock v DP World Brisbane Pty Ltd [2022]. However in this case, the Fair Work Commission came to a very different decision.
43-year-old Craig Hancock was employed by DP World as a stevedore, working at the Port of Brisbane. He had been working for the company for 25 years. Mr Hancock was responsible for monitoring trucks going in and out of the port. He was also tasked with unloading containers and making sure straddle carriers unloaded ships and stacked containers.
Following his 7-hour shift on 11 August 2021, Mr Hancock was randomly selected for a drug and alcohol test. Such random tests were conducted in accordance with DP World’s Alcohol and Other Drug Policy. The results of the test revealed that Mr Hancock had THC (the psychoactive element of marijuana) in his system during work hours.
He was stood down from his job while a laboratory test was performed. This test confirmed that Mr Hancock had THC in his system. He was found to have had a THC level of 562ug/L. Under DP World’s drug and alcohol policy, this was considered in the high range. The policy regarded a high range as a THC level greater than 60ug/L.
Mr Hancock is stood down for being under influence of cannabis
Mr Hancock was sent a letter outlining that he had breached DP World’s “zero tolerance” drug and alcohol policy. In the letter, he was asked to attend a show cause meeting to provide his side of the story. Mr Hancock was stood down from his job without pay while his employer investigated the allegations.
At the show cause meeting, DP World told Mr Hancock that it was considering summarily dismissing him for serious misconduct. Mr Hancock expressed that he was aware of the company’s drug and alcohol policy. However, he argued that the THC that was in his system had not affected his ability to perform his job.
Mr Hancock pleads his case not to be dismissed
Mr Hancock also stated that he had only been smoking cannabis for two weeks prior to the test. And notably, that he had smoked the day prior. Mr Hancock said that he had been smoking to help alleviate stress and anxiety. He stated that he had been surprised at the positive test results, as he had only smoked a “small joint.”
Mr Hancock also made other arguments in his defence. This included that he had never before been found to be under the influence of drugs or alcohol at work. He also promised DP world that he would never again be under the influence. Mr Hancock also pleaded not to be dismissed, saying that he was the main “bread winner” for his family.
Additionally, he said that he was happy to be placed under a random drug testing program, so that he could be tested before every shift. And he said that he was happy to take part in any drug rehabilitation programs if required by DP World.
“Serious and wilful misconduct:” Mr Hancock is dismissed for being under influence of cannabis
These arguments, however, did not convince DP World. Mr Hancock was subsequently dismissed with immediate effect for serious misconduct. In his dismissal letter, DP World stated that Mr Hancock’s positive test result for THC amounted to “serious and wilful misconduct.” The letter cited that he had breached several of DP World’s policies and his own contract of employment.
Feeling that he had been unjustly treated, Mr Hancock subsequently made an unfair dismissal application with the Fair Work Commission.
Employee argues his unfair dismissal case at the Fair Work Commission
In his unfair dismissal claim, Mr Hancock argued to the Fair Work Commission that DP World did not have a valid reason to dismiss him. He stated that the company had not properly considered his responses to the allegations made against him. Nor that his employer had recognised his 25 years of “exemplary service.”
Mr Hancock said that dismissing him was a disproportionate response to his positive cannabis test. In particular, because to the negative effect it had had on him and his family’s financial situation. Mr Hancock told the Fair Work Commission that he was seeking reinstatement to his position, as well as any lost wages since his dismissal.
Mr Hancock told the Fair Work Commission that he felt DP World’s drug and alcohol policy was lawful. However, he claimed that it was unreasonable. This is because the policy did not state that a breach of the policy would lead to dismissal. Mr Hancock also argued that his role was not safety critical. Therefore, he believed that a once-off positive cannabis test did not warrant an instant dismissal.
Employer argues against unfair dismissal case at the Fair Work Commission
In its defence, DP World stated to the Fair Work Commission that Mr Hancock’s dismissal was valid and fair. It said that his positive cannabis test violated its drug and alcohol policy, therefore instant dismissal for serious misconduct was reasonable. DP World submitted evidence attesting to the fact that its staff were not prohibited to attend work with drugs in their system, as per its drug and alcohol policy. It argued that the policy was lawful and reasonable and that it clearly stated that dismissal would result from a positive drug test.
Contrary to Mr Hancock’s claim, DP World asserted that his role was in fact safety critical. The company disagreed with Mr Hancock that he was not impaired by cannabis. And that these facts warranted his dismissal.
Fair Work Commission rules on the unfair dismissal case
After assessing the evidence of both Mr Hancock and DP World, the Fair Work Commission presented its findings. It found that it was clearly stated in DP World’s employee handbook that dismissal could result from a positive drug test. It was also found that DP World’s zero-tolerance stance toward drugs and alcohol was clearly communicated in bulletins posted throughout the workplace.
The Fair Work Commission found that Mr Hancock’s role was largely admin based. However, that he could have been assigned tasks that were safety critical. It was also found that Mr Hancock’s cannabis use had exposed the company to several safety-based risks.
As for DP World’s drug and alcohol policy, the Fair Work Commission found that it was lawful and reasonable. And that given Mr Hancock’s drug test result for cannabis was in the high range, his was a serious risk of the policy. It was therefore found that DP World had a valid reason to dismiss Mr Hancock.
With respect to whether Mr Hancock’s dismissal was disproportionate, the Fair Work Commission disagreed with his assertion. It was noted that as an employee he was bound to comply with the drug and alcohol policy.
Ultimately, the Fair Work Commission ruled that Mr Hancock’s dismissal was not harsh, unjust or unreasonable. His unfair dismissal claim was therefore dismissed.
Ferry captain dismissed for positive cannabis test
Another unfair dismissal case involving the breach of a zero-tolerance cannabis policy is Toms v Harbour City Ferries Pty Limited [2015]. In this case, Sydney ferry captain Christoper Toms had tested positive to cannabis after driving a ferry into a wharf. When he took the test, Mr Toms told his employer that he had smoked cannabis the previous night.
Mr Toms was suspended by Harbour City Ferries while it conducted a workplace investigation. This concluded that he had breached the company’s zero-tolerance drug and alcohol policy. He was therefore instantly dismissed for serious misconduct.
Fair Work Commission rules on the unfair dismissal case
Upon hearing the unfair dismissal case, the Fair Work Commission found that there was a lack of evidence to connect Mr Toms’ cannabis use and the ferry crash. It therefore ruled that he had been unfairly dismissed and ordered his reinstatement.
However, Harbour City Ferries appealed the unfair dismissal decision with the Full Bench of the Fair Work Commission. It found that the “core issue” in the case was Mr Toms’ “deliberate disobedience, as a senior employee, of a significant policy.” It was stated that the fact that Mr Toms had not been impaired at the time of the crash, or that there was no link between his cannabis use and the crash, was irrelevant.
The Full Bench therefore overturned its original decision to reinstate Mr Toms. He subsequently launched an appeal with the Full Bench, however this was dismissed, and therefore so was his unfair dismissal case.
Call us today for advice regarding medicinal cannabis and your workplaceworkplace
Navigating the law and your employer’s policies can be difficult, so it’s advised that you seek professional guidance. We at a Whole New Approach are workplace relations advisors and commentators with more than 20 years’ experience. AWNA are not workplace drug use specialist or lawyers. The article is to bring to your attention what’s going on in the workplaces of today. We can help you understand what your rights are with regard to medicinal cannabis in the workplace.
Your first consultation with us is free, so call us today on 1800 333 666 for a confidential discussion.
If you have been unfairly dismissed for failing a drug test. Whether for using medicinal cannabis in the workplace or otherwise we can help. We have the deep expertise to help you understand if you can make an unfair dismissal claim with the Fair Work Commission. All abandonment of employment, issues casual employee rights and adverse action towards you over your illness or medical circumstances call us immediately.
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