AREEA West Coast consulting manager Jeff Mackie reviews a recent Fair Work Commission decision in which a Full Bench rejected permission for an employee to appeal a finding that his termination was not unfair after returning a positive test for cannabis at a Sydney airport.

In this case, the employee argued that FWC Vice President Catanzariti had erred in the original decision of October 2014 to dismiss his unfair dismissal claim and sought permission to appeal from the Full Bench.

The employee’s contention was that he had smoked a single ‘joint’ on the previous weekend and that although his positive reading was eight times the minimum detection level for cannabis, he was not impaired at work.

The employee also argued that this was his first positive drug test and that to impose what was effectively a “Zero Tolerance Policy” was harsh as his action did not constitute serious misconduct.

Significantly the Full Bench, comprising Vice President Hatcher, Senior Deputy President Hamberger and Commissioner Roberts, agreed with the employee’s argument that a positive test to cannabis did not necessarily mean he was impaired at work.

However, the Full Bench pointed out that there was no scientific test available to employers to test impairment from cannabis and that presenting himself for work with the confirmed level of cannabis in his system was a serious breach of the company’s Drug and Alcohol Management Program (DAMP).

The Full Bench also took into account the original evidence that Mr Sharp was a team leader in a role which was designated as “Safety Sensitive” under the Civil Aviation Safety Regulations 1998.

Further, the Full Bench accept that his positive test had the potential to damage the reputation of BCS Infrastructure as it was providing services to Sydney Airport Corporation, which was notified of the result.

BCS Infrastructure was also able to demonstrate that Mr Sharp had been trained in their DAMP and was well aware that a breach of the Policy would result in disciplinary action, which could include termination of employment.

Click here to read the full decision.

Implications for Employers

The decision provides strong support for the resource industry’s current drug testing regime (including urine testing), particularly in a work environment where heavy equipment or machinery is in use.

VP Catanzariti’s original decision also highlighted the difficulties faced by employers which are essentially service providers or subcontractors to their clients and are sometimes required to comply with multiple drug testing and disciplinary guidelines depending on the stipulation of their clients.

AREEA’s experienced workplace relations consultants recently aided a number of members providing services both onshore and offshore in structuring alcohol and other drug policies.

Skilled and experienced in tailoring flexible policies that meet the different requirements of AREEA members, our workplace consultants can provide advice and guidance to your organisation. Contact your local AREEA office for more information.