Employer says stevedore 'breached policy by failing to declare prescription'
The Fair Work Commission (FWC) recently dealt with a case involving a worker who was dismissed after testing positive for THC, the psychoactive component in cannabis, despite having a prescription.
The worker, with nearly two decades of service, challenged his dismissal on several grounds. He argued that he was not impaired at work, had a valid prescription for medicinal cannabis, and believed he had allowed sufficient time between consumption and his shift.
The worker also claimed confusion about his obligation to disclose his prescription, fearing potential repercussions from his employer. These arguments set the stage for a case that delves into the complexities of workplace drug policies, medical treatments, and employee rights in safety-critical industries.
This case raises important questions about how employers should balance their duty of care with accommodating employees' medical needs, especially in safety-critical industries.
Prescription for medicinal cannabis
The worker, a stevedore with over 19 years of service at a major port operator, was prescribed medicinal cannabis in February 2023 to treat mental health issues stemming from personal difficulties. The prescription included CBD oil and two types of THC flower, with specific dosage instructions.
In June 2023, the worker separated from his wife, which further impacted his mental health. He increased his use of medicinal cannabis during this period but maintained that he never consumed it within 24 hours of starting a shift.
The worker's mental health deteriorated further in early January 2024, leading to a period of leave until 29 January 2024. During this time, he increased his usage of medicinal cannabis to cope with sleep issues.
On 5 February 2024, the worker was selected for a random drug test at work. The test returned a non-negative result for THC, with further laboratory testing confirming THC levels 635ug/l (630 micrograms per litre of urine), which was 42 times higher than the cut-off level of 15ug/l prescribed by both Australian Standards and the company's “Alcohol and other drug testing” (AOD) policy.
Unfair dismissal or reasonable policy enforcement?
The worker contended that his dismissal was unfair for several reasons:
1. He believed he was fit for work and not impaired when he started his shift.
2. He argued that the presence of THC in his system, given his prescription and lack of impairment, was not a valid reason for dismissal.
3. He claimed he did not act deliberately or recklessly in returning the non-negative result.
4. The worker stated he had a "reasonable and honest belief" that enough time had passed between consuming the medicinal cannabis and starting his shift.
5. He initially admitted to failing to declare his prescription but later retracted this admission during cross-examination.
The worker also argued that he was confused about his obligation to disclose the medicinal cannabis prescription, stating that he believed the company would prohibit him from attending the workplace or terminate his employment if he disclosed it.
Employer’s ‘safety-critical’ environment
The employer argued that there were valid reasons for the dismissal:
1. The company operates in a safety-critical environment and is entitled to enforce its AOD policy.
2. The worker breached the policy by failing to declare his prescription and by attending work with elevated levels of a proscribed substance.
3. The employer emphasised that impairment was not the reason for termination, but rather the breach of policy.
4. They argued that the worker's failure to report his prescription impacted their ability to ensure workplace safety.
5. The company maintained that their AOD policy was lawful and reasonable, especially given the safety-critical nature of the work.
"[The employer] submit that [the worker's] ancillary contention that he was not impaired when he attended for work is simply not relevant in circumstances where impairment was not the reason relied on for terminating his employment. Rather, the finding of serious misconduct related to [the worker] breaching the AOD Policy, by attending work with a proscribed drug in his system and failing to declare that he had been prescribed and was consuming medicinal cannabis."
The employer's position asserted that the issue at hand was not about impairment, but about policy compliance.
The employer also noted that their AOD policy had been in place since 2012, with the current version implemented in 2021. They provided evidence of regular communication about the policy through various channels, including induction, email updates, toolbox meetings, and workplace bulletins.
Dismissal over ‘undisclosed’ medicinal cannabis use
The FWC found in favour of the employer, concluding that the dismissal was not harsh, unjust, or unreasonable. Key points from the decision include:
1. The AOD policy was deemed lawful and reasonable.
2. The worker was aware of his responsibilities under the policy.
3. The worker knowingly and willfully breached the policy.
4. The Commission found the worker's breaches to be serious.
5. The disciplinary process was found to be fair, with the worker given multiple opportunities to respond.
The Commission also addressed the worker's length of service:
"Consistent with the views of the Full Bench, I do not consider [the worker's] service, cooperation, and remorse to be relevant to the core issue, which is [the worker's] serious breaches of the AOD Policy."
This statement highlights that long service does not excuse serious policy breaches, especially when safety is at stake.
Finally, the Commission concluded:
"Having considered each of the matters specified in s.387 of the Act, I am not satisfied that [the worker's] dismissal was harsh, unjust or unreasonable. Accordingly, I find that his dismissal was not unfair."
"Nothing can be more important than protecting health and safety in the workplace, and a drug and alcohol policy is one important means of doing so. Failure to comply with a reasonable workplace drug and alcohol policy is unacceptable, first and foremost because it undermines efforts to keep workers safe, and secondly, because it exposes the employer to risk," the FWC said, quoting a recent decision.
