A worker who lodged an unsuccessful claim for Unfair Dismissal after he was dismissed for producing a positive drug test result at work in breach of the employer’s drug and alcohol management policy has been refused permission to appeal the decision by the Full Bench of the Fair Work Commission.
The decision emphasises the point that an employee may be dismissed simply because of the return of a single positive test result for an illicit substance taken outside of work hours. This may occur despite the fact that the test does not necessarily indicate that the worker is impaired or affected by the drug in carrying out their duties.
The employer in this case, BCS Infrastructure Support Pty Limited (“BCS”) held a contract with Qantas at Sydney Airport to maintain and service various types of equipment including baggage carousels and aerobridges. The work was classified as “Safety Sensitive Aviation Activities”. BCS employed Mr Sharp as a “Team Leader” in relation to this work.
On 10 February 2014, Mr Sharp was required to undertake a drug and alcohol test. Prior to undertaking the test, Mr Sharp admitted that he had smoked cannabis on the weekend. Interestingly, Mr Sharp was not stood down and he continued working until 12 February 2014.
On 12 February 2014, Mr Sharp was informed that his test had returned a “non-negative” result and he was stood down pending the provision of a report from a Medical Review Officer.
Confirmatory test results provided to the Medical Review Officer showed that Mr Sharp had tested positive for cannabinoids at a level more than 7 times threshold limit allowed for under BCS’s Drug and Alcohol Management Policy.
Mr Sharp was then required to participate in the formal disciplinary process outlined by the employer’s Drug and Alcohol Management Policy. This included a formal disciplinary meeting.
Following that meeting Mr Sharp provided a written response which stated that: –
- He was not a regular user of cannabis;
- He had smoked a single “joint” with friends on the Saturday prior to the test;
- He did not feel impaired when he attended for work;
- He acknowledged he had made a serious mistake;
- He was prepared to submit to a program of ongoing or random testing if he were given a second chance; and
- His length of service, his work record, his willingness to transfer to another worksite, his cooperation with the investigation process and his status as the primary breadwinner in his family should be taken into account.
At a further meeting on 21 February 2014, Mr Sharp was given notice that he was dismissed from his employment as a result of his test result effective immediately. Mr Sharp was paid his outstanding annual leave entitlements and paid 4 weeks’ pay in lieu of notice.
Mr Sharp subsequently lodged a claim for unfair dismissal with the Fair Work Commission.
The claim was heard before Vice President Catanzariti of the Fair Work Commission. Vice President Catanzariti determined that the return of a positive test was sufficiently serious to constitute serious misconduct and that there was a valid reason for Mr Sharp’s dismissal. Vice President Catanzariti also found that Mr Sharp was accorded procedural fairness and that his dismissal was not harsh, unjust or unreasonable. As a result of those finding, Mr Sharp’s claim for unfair dismissal was itself dismissed.
In his grounds of appeal to the Full Bench of the Fair Work Commission, Mr Sharp contended that the Vice President had erred: –
- In concluding that Mr Sharp’s dismissal was not harsh, unjust or unreasonable and accordingly was not unfair.
- In finding that the return of “a confirmed positive test result whilst at work” formed a valid reason for termination;
- In finding, in his consideration that a non-negative urine test result constituted serious misconduct;
- In finding that Mr Sharp’s conduct caused a serious and imminent risk to the reputation of BCS’s business;
- In finding that the termination was not harsh;
- In finding that Mr Sharp was accorded procedural fairness regarding the notification of the reasons for termination.
In reaching its decision to refuse Mr Sharp’s Appeal, the Full Bench concluded that an employer may be justified in dismissing an employee for any positive test result which breaches its drug and alcohol policy and, in particular, where any degree of impairment could constitute a threat to safety.
This was despite the Full Bench’s acknowledgement that there is no current scientific testing method available for accurately assessing impairment caused by the use of cannabis. The original decision of the Vice President was “not necessarily” the same decision that the members of the Full Bench would have reached if they had heard the Unfair Dismissal Claim at first instance and not on Appeal.
The Fair Work Commission’s reluctance to interfere with the employer’s decision to dismiss the employee in this case is typical of other recent decisions concerning employees who fail urine tests when they are employed in safety sensitive areas of work.1 This is despite the finding that the urine and saliva test results relied on by employers only indicate the presence of a drug in a person’s system and do not provide evidence of actual impairment while the employee was at work.
Whether the Fair Work Commission takes a similar approach to employees in non-safety sensitive areas of work remains to be seen. In any event the message to take home for employees is that the consumption of illicit substances such as cannabis over a weekend or whilst on leave may compromise their employment even if they are no longer demonstrating signs of impairment from their use of the drug.
Should you have a query regarding dismissals related to drug testing in the workplace, please contact Steven Hayles.
Notes
1Harbour City Ferries Pty Ltd v Toms [2014] FWCFB 6249, Collins v Lyndons Pty Ltd [2014] FWC 5903
