Last week we told you that a recent Victorian report into workplace drug testing has found that employees prescribed medicinal cannabis have routinely lost their job or faced disciplinary action simply for taking legal medications.
In a case in point: a worker who was dismissed by his employer after testing positive for THC in a random drug test, lost an unfair dismissal case at the Fair Work Commission despite the fact he had been prescribed and was using medicinal cannabis.
The worker, who had been employed as a stevedore by DP World Brisbane Pty Ltd, argued that the existence of traces of the metabolite THC in his system in circumstances where he had a prescription and was not impaired was not a valid reason for his dismissal. He sought reinstatement to his former position, continuity of employment and lost pay.
The worker accepted he breached his obligation under the company’s Alcohol and Other Drugs (AOD) Policy to disclose his use of medicinal cannabis, but said he did so because he was led to believe DP World would ban him from the workplace or dismiss him.
The employer argued they did not dismiss the worker for being impaired at work, but for attending work with proscribed drugs in his system and failing to declare that he had been prescribed and was consuming medicinal cannabis.
Fair Work Commissioner Sharon Durham upheld the employer's claim that the worker's disclosure failures impacted on its "ability to discharge their obligations to take reasonable steps to ensure the safety of persons working at the [relevant] port".
She accepted the AOD policy was not based on levels of impairment but set "cut-off" limits and did not distinguish between prescribed or recreational consumption of cannabis.
Further, the policy also specified that workers reporting taking prescribed medicinal cannabis might be required to seek clearance from their doctors that they were fit to perform their role while taking the medication, the Commissioner added.
The Commissioner said that if the worker had reported his prescription, his doctor and DP World could have consulted and agreed on the appropriate number of hours to leave between consuming his medicinal cannabis and commencing work.
In conclusion, the Commissioner upheld the dismissal, finding the worker was aware of the "safety critical nature of his role, and the high-risk work being undertaken around him", but "chose to consume an unconfirmed amount of medicinal cannabis around 24 hours before beginning his shift".
Source: OHS Alert. Read more: Gauci v DP World Brisbane Pty Limited [2024] FWC 2351 (2 September 2024) Download the Final Report Workplace drug testing in Victoria [pdf]. More information and VTHC OHS Unit Live show Medical Cannabis – Workers’ Rights and Employer Obligations.