Where safety is a critical component of an employee's
duties, employers' drug and alcohol policies are more likely to
The Full Bench of the Fair Work Commission recently upheld the
termination of employment of an employee who returned a positive
test for cannabis in a random drug test.
The employee was a team leader employed at Sydney Airport by a
company involved in maintenance and service of baggage carousels.
The employee's work duties were known as "safety sensitive
The employee returned a confirmed positive drug test result
whilst at work and was terminated for that reason. The employee
contended that he was not suffering to any impairment due to the
consumption of drugs or alcohol nor that he had consumed drugs or
alcohol on site.
He further contended that he was not a regular user of cannabis
and that he had smoked a single "joint" with friends on
the Saturday prior to the test resulting in the positive drug
On appeal, the Full Bench of the Fair Work Commission affirmed
the decision at first instance dismissing the employee's unfair
dismissal claim and affirming the company's right to terminate
the employment. The mere existence of a positive test result
provided a valid reason for dismissal in the circumstances and
constituted serious misconduct.
The Full Bench noted that the issue in this case was not the
employee's "out of hours" conduct in smoking
cannabis, but rather that he attended for work with a level of
cannabis above the acceptable threshold. That was deemed to be
"at work" conduct even though it could not be
demonstrated scientifically that the employee suffered any
impairment arising from the use of cannabis.
Where an employee who shows no obvious signs of impairment
undergoes a drug test at work and tests positive for cannabis, 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. This means the
employer will therefore not be in a position to properly assess
whether the employee is impaired as a result of the cannabis use
and therefore presents a threat to safety.
For that reason, employer policies which provide for
disciplinary action including dismissal where an employee tests
positive for cannabis may, at least in the context of safety
critical work, be judged to be lawful and reasonable. Likewise,
depending on all the circumstances, it may be reasonably open to
find that a dismissal effected pursuant to the policy was not
Key Takeaways for Employers
Make sure your drug and alcohol policy expressly states that
disciplinary action including dismissal will be taken where an
employee fails to comply.
Ensure all employees are made aware of their responsibilities
under the policy through training before and after
(Sharp v BCS Infrastructure Support Pty Ltd 
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.Madgwicks is a member
of Meritas, one of the world's largest law firm
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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