Where safety is a critical component of an employee's duties, employers' drug and alcohol policies are more likely to be enforceable.

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 aviation activities".

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 test.

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 unfair.

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 implementation.

(Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033)

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 alliances.