Australia: Drug and alcohol use: when zero tolerance is tolerable

Clayton Utz Insights

Key Points:

When safety is critical, employers may be in a stronger position to discipline and even dismiss employees who return positive test results for drugs, even if they're not impaired at work.

Where safety-critical work is being performed, and testing for impairment related to a particular substance is not a precise science, a zero tolerance policy for any positive test result may be appropriate. That's the lesson from a recent decision of the Full Bench of the Fair Work Commission (Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033). It's an approach that has subsequently been endorsed by the Full Federal Court in Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35.

What happened in Sharp?

Mr Sharp was employed by BCS Infrastructure Pty Ltd, which provided servicing of airport equipment such as baggage carousels. This work is classified as "Safety Sensitive Aviation Activities".

He was dismissed after he was required to undergo a random drug and alcohol test and tested positive for cannabinoids eight times above the limit stated in the employer's policy. Before taking the test, he admitted to smoking marijuana in the form of a single joint on the weekend, but asserted that he was not a regular cannabis user, and did not feel impaired when he arrived at work on Monday.

Mr Sharp lodged an unfair dismissal claim, which was rejected. Vice President Catanzariti held that, despite the mitigating factors, including the employee's length of service, his previously unblemished record and the economic impact of the dismissal, the employee's positive test result was a valid reason for dismissal, and the decision to dismiss him was not harsh in the circumstances.

He also observed that the issue to be decided was not whether BCS had a right to dismiss the employee for his out-of-hours conduct, but rather whether it had a right to dismiss the employee after he presented for safety-sensitive work with cannabinoids in his system that significantly exceeded the permitted level.

Mr Sharp then appealed to the Full Bench.

The Full Bench: dismissal for drug use can be reasonable, depending on the circumstances

The Full Bench ultimately refused to grant the employee permission to appeal and stated that it found no error in Vice President Catanzariti's decision.

It acknowledged that Mr Sharp may have felt hard done by, given that he did not consider himself to be impaired in any way or pose a risk to anyone's health and safety. Notably, however, it commented that a critical consideration in determining whether his dismissal was unfair was the fact that there is no scientific testing method available for accurately assessing impairment caused by the use of cannabis.

Noting the type of work performed by the employee, the Full Bench observed that where the degree of impairment caused by a particular drug may be difficult to assess, an employer may be justified in dismissing an employee for any positive test result which breaches its drug and alcohol policy, particularly if any degree of impairment could have significant safety consequences. The following passage from the decision neatly sums up the Full Bench's position:

"...[W]here an employee who shows no obvious signs of impairment undergoes a drug test at work and tests positive for cannabis use, the employer is placed in a difficult position. In practical terms, it will be unlikely that the employer will be in a position to independently ascertain when the relevant employee consumed cannabis and the quantity that was consumed. Apart from reliance upon the employee's own explanation about the matter, which will probably not be verifiable, the employer will therefore not be in a position properly to assess whether the employee is impaired as a result of cannabis use and therefore represents a threat to safety. For that reason, employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis simpliciter may, at least in the context of safety-critical work, be adjudged to be lawful and reasonable. Likewise, depending on all the circumstances, it may be reasonably open to find that a dismissal effected pursuant to such a policy was not unfair."

Although the Full Bench admitted that "the outcome is not necessarily the one we would have arrived at had we considered the matter ourselves", it commented that the Vice President's decision was not "manifestly unjust or counter-intuitive" and was in line with other unfair dismissal decisions pertaining to drug and alcohol testing.

Employers in a stronger position where work is safety-critical

The Fair Work Commission has previously held that employers do not have the right to discipline employees for their conduct outside of working hours. However, in light of this decision from the Full Bench, employers may be in a stronger position to discipline and even dismiss employees who return positive test results for drugs such as cannabis, even if there is no evidence that the employee is in any way impaired at work.

However, it should be noted that reliance on zero tolerance drug and alcohol policies is more likely to be seen as appropriate where the work carried out by employees involves serious safety issues (ie. the Full Bench's decision may have been different if the employee had been an accountant).

In the context of an unfair dismissal claim, the Fair Work Commission is also likely to look at all of the circumstances of each individual case, including the specific wording used in an employer's drug and alcohol policy. Accordingly, employers should seek legal advice before moving to dismiss an employee for a positive drug test result if there is any uncertainty.

Importantly, this case demonstrates that while an employee's activities on their time off may not be any of their employer's business, an employee can still suffer the maximum consequences for breaching their employer's drug and alcohol policy, even if they are not actually under the influence at work!

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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