Thomson Geer Partner, Mark Branagan, recently led a team that successfully defended an appeal by a worker who was dismissed for returning a positive drug test result for marijuana at work.
On 27 February 2015, the Full Bench of the Fair Work Commission upheld an earlier decision of Vice President Catanzariti that the worker, who failed a random drug test, was not unfairly dismissed.
The employee was a team leader employed at Sydney Airport by BCS, a company involved in maintenance and service of baggage carousels and aerobridges at Sydney Airport. The employee’s work duties were known as ‘safety sensitive aviation activities’ (SSAA). In February 2014, the employee recorded a positive cannabis reading of 112 micrograms, some eight times over the threshold level of 15 micrograms. After further confirmatory testing and investigation, he was dismissed from his employment.
At first instance, VP Catanzariti found that the positive reading breached BCS’s Drug and Alcohol Management Policy (DAMP) and constituted serious misconduct sufficient to justify dismissal. The degree of the employee’s impairment was not the relevant factor in the dismissal (and BCS did not rely upon impairment as the basis of its disciplinary action). The critical factors included that the employee was aware of the DAMP, had undertaken specific training on a policy held by Qantas similar to the DAMP, and that a positive test result could cause a serious risk to BCS’ reputation.
In appealing the original decision, the employee argued that VP Catanzariti had erred in disregarding relevant factors including that the employee was not impaired, the drug use occurred out of hours, the test was not conducted strictly in accordance with the DAMP and it was his first positive drug test result. The employee also relied on the fact he had not been trained in BCS’s DAMP; rather he had been trained in a similar drug and alcohol policy enforced at the airport by Qantas which did not provide for dismissal.
The Full Bench rejected the employee’s appeal, upholding VP Catanzariti’s findings that the employee had breached the DAMP by returning a drug reading in excess of the permitted threshold, that he was aware of the DAMP and had been trained in the Qantas policy. Impairment was not a relevant consideration given the lack of an adequate scientific test to establish the degree of impairment.
The Full Bench noted that employers are placed in a difficult position when an employee tests positive for drugs, particularly where the workplace has safety-critical tasks such as SSAAs at airports. The Full Bench concluded that the original decision had properly found that the employee’s conduct was sufficient to warrant dismissal, despite the employee’s length of service and it being the employee’s first positive reading.
The decision in this case is another recent example of support for employers seeking to enforce drug and alcohol policies. Employers are entitled to take disciplinary action against employees who test positive for drugs or alcohol, where the conduct is a breach of company policy. However, the case is also a timely reminder of the critical importance of proper implementation and training in company policies.