Zero tolerance for recreational pot-smoking employee
Posted on March 19, 2015
In Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, the Fair Work Commission (FWC) confirmed an employer’s decision to terminate the employment of an employee who returned a positive drug test.
BCS held a contract with Qantas at Sydney Airport to maintain and service equipment, including baggage carousels and aerobridges. This work fell within the definition of “Safety Sensitive Aviation Activities” (SSAA) under the Civil Aviation Safety Regulations 1998 (Cth). In 2006, Mr Sharp was employed by BCS to perform work in relation to this contract, and he was promoted to the position of Team Leader in April 2011.
On 31 January 2014, the Sydney Airport Corporation Limited, as the operator of Sydney Airport, required all employees of BCS who performed SSAA and who had not previously been subjected to drug and alcohol testing, to be tested by 21 February 2014. Mr Sharp was called upon for testing on 10 February 2014, at which point he immediately advised his supervisor that he had consumed marijuana two days prior.
On 12 February 2014, Mr Sharp was advised that his test had returned a non-negative result and was stood down pending the provision of a report from the Medical Review Officer. The Medical Review Officer confirmed that Mr Sharp had tested positive for THC at a level of 112µg/L, at which point Mr Sharp was advised that he would be subject to a formal disciplinary process under BCS’s Drug and Alcohol Management Plan (DAMP). Disciplinary meetings were held on 19 February 2014 and 21 February 2014, at which point Mr Sharp was immediately dismissed.
In the first instance, the FWC upheld the dismissal.
On appeal, Mr Sharp argued that:
- The employer had no valid reason for terminating the employment;
- The positive result did not amount to serious misconduct;
- The decision was harsh because he was not impaired, he was not a habitual drug user and the positive result arose from out of hours conduct; and
- He was denied procedural fairness because he was not provided with the actual test results (ie. he was only provided with the Medical Review Officer’s report).
The Full Bench of the FWC disagreed on all grounds and upheld the earlier decision of the Vice President.
This is significant because on many previous occasions, the FWC has found a dismissal to be unfair where there was no evidence of impairment. However, in the current circumstances impairment was irrelevant as BCS’s DAMP included a threshold of 15µg/L for THC. Accordingly, the FWC confirmed that:
It was conduct in breach of BCS’s DAMP. Clause 11 of the DAMP provided that: “BCS will take disciplinary action against an SSAA employee who fails to comply with their responsibilities and obligations under the DAMP, including but not limited to ... returning a confirmatory test result”… BCS’s requirement for compliance with the DAMP was a lawful and reasonable one, having regard to the significance of drug and alcohol issues in a safety-critical working environment. In those circumstances, we consider it was reasonably open to the Vice President to find that there was a valid reason for the dismissal.
Therefore, employers who seek to enforce a drug and alcohol policy need to include a clear statement as to what constitutes a positive test leading to disciplinary action including termination of the employment (eg. 15µg/L in the current case). The employees must be trained on the policy and it should be reviewed regularly. In the absence of these elements, it is likely that hasty action taken under an unclear policy will amount to unfair dismissal!
Please contact a member of Lynch Meyer’s Workplace Relations team if you have a query about drugs and alcohol in the workplace.
