In brief

  • Previous Fair Work Commission decisions have found that termination of employment on the basis that an employee has returned a positive alcohol or other drug test in circumstances where there is no evidence that the employee was actually impaired at work is likely to be harsh, unjust or unreasonable.
  • One of the difficulties this has raised for employers has been that there is no test currently available which categorically detects impairment as a result of cannabis use.
  • A recent decision of a Full Bench of the Fair Work Commission has confirmed that, at least for employees working in safety critical roles, termination for breach of a zero tolerance or prescribed threshold policy might be appropriate, even where there is no evidence of impairment.

Overview

The Full Bench of the Fair Work Commission, in its recent decision in Sharp v BCS Infrastructure Support Pty Limited1 has revisited the question of when an employer can legitimately test for employee drug use generally, as opposed to testing for actual impairment, finding that zero tolerance policies may be lawful and reasonable in the context of safety critical work.

The decision represents the most recent in a number of key developments in the area of drug and alcohol testing in the workplace. Two issues which were extensively debated in 2014 were the efficacy of different testing methods (in particular saliva and urine testing) in accurately identifying impairment as a result of drug use, and whether employers can ever legitimately test for drug use more generally, rather than for actual impairment during the hours of work. Further details on these principles can be found in our previous update.2

The current decision suggests that, at least in the context of safety critical workplaces, the tide may be shifting in favour of a zero tolerance approach.

Background

Mr Sharp was employed by BCS to perform work in relation to its contract with Qantas at Sydney Airport to maintain and service various pieces of equipment. That work constituted 'Safety Sensitive Aviation Activities' under the Civil Aviation Safety Regulations 1998 (Cth). Mr Sharp was dismissed after producing a positive urine test for cannabinoids, at a level eight times the permitted threshold prescribed in BCS’ drug and alcohol policy. The test was administered as part of BCS’ random testing policy, and there was no evidence to suggest that Mr Sharp was in fact impaired at work.

Mr Sharp brought an unfair dismissal claim arguing that his dismissal was harsh, unjust or unreasonable as there was no evidence he was suffering from impairment or that he was a habitual drug user and that BCS had impermissibly based its decision on his out of hours conduct.

In refusing Mr Sharp’s unfair dismissal claim, Catanzariti VP found the issue was not Mr Sharp’s out of hours conduct in smoking the marijuana, but rather the fact that he attended for safety critical work with a level of cannabinoids in his system which was significantly in excess of the employer’s permitted threshold. This, coupled with the fact that by performing safety critical work Mr Sharp had exposed BCS to risk of serious reputational damage, was found by Catanzariti VP to constitute a valid reason for termination of employment. Mr Sharp appealed that decision.

Decision on Appeal

In rejecting Mr Sharp’s request for permission to appeal, the Full Bench found that the issue had been correctly characterised at first instance as one of 'at work' conduct. In reaching this conclusion, the Full Bench held that a critical consideration was the fact that there is currently no test which can identify impairment resulting from cannabis use. Therefore it was, in the opinion of the Full Bench, reasonable for employers in safety critical industries to impose policies which provide for dismissal upon delivering a positive test, even in the absence of specific evidence of impairment.

In reaching this decision the Full Bench has left the door open for a different conclusion to be reached in the context of non-safety critical work. Further, employers must continue to have regard to all relevant matters relating to the employment (and not just the policy breach) in deciding the appropriate sanction for the offending employee. Finally, although not directly in issue, the Full Bench noted that while it cannot conclusively demonstrate impairment or non-impairment, saliva testing can more accurately test recent cannabis use than urine testing, again indicating the Commission’s apparent continuing preference for the use of saliva testing.

Sam Witton, Grace Caterina.