A Fair Work Commission full bench has rejected the Glamorgan-Spring Bay Council’s appeal against a FWC previous ruling that a council employee’s sacking was unfair.
The Tasmanian council sacked the employee last year after a random drug test delivered a positive result for THC. In January the FWC upheld the employee’s unfair dismissal claim and ordered his reinstatement.
In 2023 the employee notified the employer that he was taking prescribed medical cannabis containing cannabidiol to manage chronic pain arising from a workplace injury to his foot. He did not follow up with his employer when his prescription was changed to medical cannabis containing THC, which was detected in the random drug test.
The council dismissed the employee after an occupational physician engaged by the council reported that the employee could not safety perform his work while taking the medicine and that they could not find a suitable alternative role for him. The employee filed an unfair dismissal claim with a FW Commissioner finding that the council had failed to allow enough time to explore alternative pain management treatments or ways in which they could support the worker to keep his job.
The council’s appeal of the unfair dismissal decision argued that the Commissioner failed to contradict the opinion of their occupational physician with regard to the employee’s inability to safely perform his work.
The FWC full bench acknowledged that whilst it had been open for the Commissioner to find the employee could not safely perform work with THC in his system based on the evidence in the physician report, that did not arise in the context of the assessment of the fairness of the decision to dismiss the employee. The Commissioner had heard and accepted evidence from the employee that if reinstated he would stop using the medication containing THC, and the unfair dismissal decision was based on the employer’s failure to be open to the option of working with the employee to resume his duties.
Read more: Glamorgan Spring Bay Council v Adam Mills [2025] FWCFB 69
