Drug and Alcohol Policy – Zero Tolerance
When safety in the workplace is critical, employers need to have a stronger position in disciplining and even dismissing employees who return positive test results on drugs, even if they’re not impaired at work.
This could include implementing a zero tolerance drug and alcohol policy, even when an employee may not be impaired at work.
That is the lesson learned from a recent decision of the Full Bench of the Fair Work Commission (Sharp v BCS Infrastructure Support Pty Limited  FWCFB 1033), an approach that has subsequently been endorsed by the Full Federal Court in Toms v Harbour City Ferries Pty Limited  FCAFC 35.
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).
In the case above, Mr Sharp was dismissed after he tested positive for cannabinoids eight times above the limit stated in the employer’s 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.
He admitted to smoking marijuana on the weekend, but asserted that he did not feel impaired when he arrived at work on Monday.
The employee’s unfair dismissal claim was rejected, and he appealed to the Full Bench.
But the Full Bench supported the company’s decision in dismissing the employee, stating that:
…[W]here an employee who shows no obvious signs of impairment undergoes a drug test at work and tests positive for cannabis use, the employer is placed in a difficult position. In practical terms, it will be unlikely that the employer will be in a position to independently ascertain when the relevant employee consumed cannabis and the quantity that was consumed. Apart from reliance upon the employee’s own explanation about the matter, which will probably not be verifiable, the employer will therefore not be in a position properly to assess whether the employee is impaired as a result of cannabis use and therefore represents a threat to safety. For that reason, employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis may, at least in the context of safety-critical work, be adjudged to be lawful and reasonable. Likewise, depending on all the circumstances, it may be reasonably open to find that a dismissal effected pursuant to such a policy was not unfair.
Although the Fair Work Commission had previously held that employers do not have the right to discipline employees for their conduct outside of working hours, this decision from the Full Bench indicates that employers may be in a stronger position to discipline and even dismiss employees who return positive drug test results, even if there is no evidence that the employee is impaired at work.
However, a zero tolerance drug and alcohol policy is really only appropriate only where the work carried out by employees is highly safety-critical. Had Mr Sharp been in a role that was not safety critical, the outcome by the Full Bench would have most likely been different.
Accordingly, employers should seek legal advice before moving to dismiss an employee for a positive drug test result if there is any uncertainty.
Importantly, this case demonstrates that while an employee’s activities on their time off may not be any of their employer’s concern, an employee can still suffer the maximum consequences for breaching their employer’s drug and alcohol policy, even if they are not actually under the influence at work.
For more information and advice on introducing a drug and alcohol policy at your workplace, please contact us for advice and a free quote on third party sampling for drug testing in your workplace.
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Sharp v BCS Infrastructure Support Pty Limited  FWCFB 1033. The full decision is available from the Fair Work Commission.