Tuesday, 28 July 2015

No tolerance for being “dopey”

Employers owe a duty of care to their employees and to the public to ensure that work is carried out in a safe manner. In carrying out this duty, employers often implement procedures for testing the drug and alcohol levels of their employees.

However, the method of testing has recently come under debate – urine vs. saliva. Which is most effective? Is this a breach of an employee’s privacy?

Further, there is no scientific ‘one size fits all’ test that measures the exact effects of drug or alcohol use on a person. Therefore, if a test comes back positive, is the employee sufficiently impaired to justify dismissal?

The following cases provide some helpful tips for employers facing this predicament.

Case study: Sharp v BCS Infrastructure Support Pty

Mr Sharp was employed by BCS Infrastructure Support Pty Limited who was contracted by Qantas to provide ongoing maintenance to their baggage handling system. This work constituted “Safety Sensitive Aviation Activities” (SSAA) under the Civil Aviation Safety Regulations 1998 (Cth).

Prior to a mandatory drug test (urine), Mr Sharp confessed that he had recently consumed cannabis. This was confirmed by a test result that revealed he had a cannabinoid level of 112µg/L. The BCS policy tolerated a maximum cannabinoid level of 15µg/L. BCS subsequently terminated Mr Sharp’s employment.

Mr Sharp alleged that he had been unfairly dismissed and argued that his conduct did not amount to serious misconduct, justifying dismissal. The Fair Work Commission (FWC) disagreed, and held that the dismissal was not harsh, unjust or unreasonable in the circumstances as –

    “The nature of the work undertaken by [Mr Sharp] explains the seriousness with which [BCS] treats the use of drugs and alcohol. It is clear that safety is a significant concern for individuals performing work such as that [Mr Sharp] performed.”

Mr Sharp appealed, stating that when he came to work he was not impaired and therefore, should not have been dismissed.

The Full Bench of the FWC (FBFWC) acknowledged the difficulty in assessing impairment –

    However, a critical consideration in assessing whether a dismissal in these types of circumstances was unfair is the fact that there is currently no direct scientific test for impairment arising from the use of cannabis. Saliva testing can more accurately detect recent cannabis use than urine testing, which means that it may be a better proxy indicator of the possibility of impairment, but it remains the case that it cannot conclusively demonstrate impairment or non-impairment. Therefore, where an employee who shows no obvious signs of impairment undergoes a drug test at work and tests positive for cannabis use, the employer is placed in a difficult position…. For that reason, employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis simpliciter may, at least in the context of safety-critical work, be adjudged to be lawful and reasonable.(emphasis added)

The FBFWC held that, based on the breach of BCS policy and the safety critical work environment, it was open for BCS to have a valid reason for dismissal.

Case study: Harbour City Ferries v Toms

During a shift, Mr Toms (a Ferry Master) miscalculated a distance when approaching the wharf and collided with a pylon. Following the incident, Mr Toms undertook a mandatory drug test (urine), which came back positive for cannabis. He later admitted that he had used cannabis as a pain reliever the night prior to the incident.

Harbour City Ferries (Harbour City) had a ‘zero tolerance’ drug and alcohol policy regarding the use of specified drugs, as well as a Code of Conduct which required workers not to commence or continue work if affected by drugs or alcohol. Mr Toms was subsequently dismissed.

However, Mr Toms alleged that he was unfairly dismissed and sought to have his employment reinstated.

Initially, the FWC reinstated Mr Toms’ employment on the basis that there could be no proven connection between the drug use and any impairment which caused the incident. Further, while there was a breach of Harbour City’s policy, the fact that there had been no tangible impairment and he had 17 years of service, meant that the dismissal had been harsh, unjust or unreasonable.

Harbour City successfully appealed and Mr Toms’ reinstatement was overturned. The FBFWC held that that the central issue was held to be the ‘”deliberate disobedience” by Mr Toms of Harbour City’s policy, rather than the bearing (if any) of the drug on the incident.

However, the FBFWC again acknowledged the difficulty of drug testing –

    We are not persuaded that urine testing, the agreed method of drug testing at Harbour City, is a guide as to the actual presence of marijuana in an employee’s system or any impairment arising as a consequence. It is a testing system which in this case indicated past use and no present impairment

The FBFWC accepted that Harbour City had the right to require its employees to comply with its drug and alcohol policy –

    The fact is that Harbour City required its policy complied with without discussion or variation. As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor

Lessons for employers:

Both decisions demonstrate that despite a lack of evidence which connects cannabis use with impairment, an employer may still have a valid reason for dismissal if it has implemented an enforceable policy on cannabis use in its workplace.

If you require assistance with drafting or updating workplace policies and employment contracts, please contact HR Legal.


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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