The Fair Work Commission has recently found that an employee who tested positive for THC was not unfairly dismissed [1].

Facts

The employer, Whitehaven Coal Limited, had a ‘two strikes’ policy in place. If a worker tested positive, they were allowed a three week period to reduce the levels in their blood to below the Australian Standard of 15 micrograms, before their next test.

The employee, Jarrod Eather, tested at a level of 65 micrograms in his first test, 48 micrograms in his second test (18 days later) and 18 micrograms in his third test (22 days later). Subsequently, his employment was terminated.

Findings

The Commission held that a worker with such high levels of THC in their system would pose such a ‘gravely serious’ [2] risk and that dismissal of the employee was the only suitable action for the employer to take, due to the potentially ‘catastrophic’ [3] consequences of his conduct while under such an influence. On this basis, the Commission found that the dismissal was not harsh, unjust or unreasonable.

In its decision, the Commission noted that the employer had a comprehensive drug and alcohol policy in place and also followed a particular process in testing Mr Eather and terminating his employment.

Policies and processes

Employers should ensure:

  • they have appropriately drafted policies relating to drugs and alcohol;
  • the policies are suitable for the business, having regard to the nature of the business, the work employees are performing and any specific health and safety risks in the workplace;
  • the policies allow a reasonable amount of flexibility for the employer, whilst still providing clear standards to be observed by employees;
  • policies are regularly reviewed for consistency with legal developments, for example, legal access to medicinal cannabis for certain individuals, as a result of recent legislative changes; and
  • they obtain professional advice in relation to policies in place in the business and processes for dealing with drug and alcohol issues in the workplace.